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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

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American Federation of Government Employees, AFL-CIO, National Immigration & Naturalization Council (Union) and U.S. Department of the Justice, Immigration and Naturalization Service (Agency)

[ v08 p347 ] 08:0347(75)NG
The decision of the Authority follows:

8 FLRA No. 75
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL
IMMIGRATION & NATURALIZATION SERVICE COUNCIL
Union
and
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION & NATURALIZATION SERVICE
Agency
Case No. O-NG-52
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101-7135). THE ISSUE INVOLVED IS THE NEGOTIABILITY OF SIXTEEN
PROPOSALS.
UNION PROPOSAL 1
ACCESS TO INTERNAL INVESTIGATION FILES SHALL BE RESTRICTED. DURING
THE INVESTIGATION, ONLY
THE OFFICER OR OFFICERS ASSIGNED TO CONDUCT THE INVESTIGATION WILL
HAVE ACCESS TO THE RELATED
FILE AND MATERIAL THEREIN.
. . . ACCESS TO THIS SUBJECT FILE MAY BE AUTHORIZED TO ANY SERVICE
OFFICIAL FOR CAUSE. A
WRITTEN STATEMENT OF CAUSE SHALL BE SUBMITTED BY THE SERVICE OFFICIAL
REQUESTING THE FILE AND
A PERMANENT RECORD WILL BE KEPT ON SUCH REQUESTS. THE SERVICE AND
THE UNION AGREE THAT
INTERNAL INVESTIGATION FILE(S) MAY CONTAIN EXTREMELY SENSITIVE
MATERIAL. THEREFORE, ACCESS IN
NO CASE WOULD BE AUTHORIZED FOR INDISCRIMINATE PURPOSES.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE THE PROPOSAL DOES NOT RELATE
TO THE "CONDITIONS OF EMPLOYMENT" OF UNIT EMPLOYEES WITHIN THE MEANING
OF SECTION 7103(A)(14) OF THE STATUTE; OR BECAUSE IT CONFLICTS WITH THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES PURSUANT TO
SECTION 7106(A)(1), OR THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED PURSUANT TO SECTION 7106(A)(B) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL IS NOT CONCERNED WITH THE
CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION
7103(A)(14) OF THE STATUTE AND, THUS, IT IS NOT WITHIN THE AGENCY'S DUTY
TO BARGAIN. /1/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
THAT THE PETITION FOR REVIEW OF THIS DISPUTED PROPOSAL BE DISMISSED.
REASONS: THE DUTY TO BARGAIN ESTABLISHED IN THE STATUTE /2/ EXTENDS
TO MATTERS RELATING TO "CONDITIONS OF EMPLOYMENT," I.E., PERSONNEL
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS OF UNIT
EMPLOYEES. /3/ THE PROPOSAL, HOWEVER, BY ITS LANGUAGE AND THE UNION'S
STATED INTENT, IS CONCERNED WITH RESTRICTING THE ACCESS OF MANAGEMENT
OFFICIALS TO THE AGENCY'S INTERNAL INVESTIGATORY FILES. IN THIS REGARD,
THE PROPOSAL DOES NOT DIRECTLY INVOLVE PERSONNEL POLICIES, PRACTICES OR
MATTERS AFFECTING UNIT EMPLOYEES' WORKING CONDITIONS. WHILE THE UNION
STATES THAT THE PURPOSE OF THE PROPOSAL IS TO PROTECT EMPLOYEES AGAINST
THE CONSIDERATION OF SENSITIVE BUT IRRELEVANT INFORMATION IN THE FILES
IN CONNECTION WITH PERSONNEL ACTIONS AFFECTING THEM, THE PROPOSAL, AS
DRAFTED, IS DIRECTED TOWARD MANAGEMENT'S ACCESS TO THE AGENCY FILES IN
QUESTION RATHER THAN MANAGEMENT'S CONSIDERATION OF OR OTHER USE OF SUCH
INFORMATION. THEREFORE, NOTWITHSTANDING THE OBJECTIVE OF THE PROPOSAL,
ON ITS FACE THE PROPOSAL, WHICH IS DIRECTLY CONCERNED ONLY WITH
RESTRICTING MANAGEMENT'S ACCESS TO ITS FILES, DOES NOT CONCERN
CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES.
UNION PROPOSAL 2
IN ADDITION TO OTHER INSIGNIA OR A BADGE ALREADY PROVIDED, UNIFORMED
EMPLOYEES MAY BE
ISSUED AN IDENTIFICATION PLATE SHOWING, AMONG OTHER THINGS, AN
OFFICIAL EMBLEM AND A NUMBER
FOR IDENTIFICATION PURPOSES. EMPLOYEES' NAMES WILL NOT BE REQUIRED
ON IDENTIFICATION PLATES
TO AVOID ABUSE OF THE EMPLOYEES' PRIVACY AND TO AVOID HARASSMENT.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN,
AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT WITH THE AGENCY'S
RIGHT TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK PURSUANT TO
SECTION 7106(B)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL DOES NOT CONFLICT WITH THE
AGENCY'S RIGHT TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK
PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE. THEREFORE, THE PROPOSAL
IS WITHIN THE AGENCY'S DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10
(1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THIS PROPOSAL.
/4/
REASONS: THE ESSENCE OF THE DISPUTE BETWEEN THE PARTIES CONCERNING
THIS PROPOSAL IS WHETHER THE STATUTE RESERVES TO MANAGEMENT, PURSUANT TO
ITS RIGHT TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK, THE
RIGHT TO UNILATERALLY DETERMINE THAT THE IDENTIFICATION PLATES WORN BY
UNIFORMED OFFICERS SHALL DISPLAY THE EMPLOYEES' NAMES RATHER THAN A
NUMBER.
NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE, REGION
VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254 (1979), INVOLVED AN AGENCY
REQUIREMENT THAT UNIFORMED CUSTOMS OFFICERS WEAR NAMEPLATES FOR THE
PURPOSE OF "PERSONALIZING" THE PUBLIC'S DEALINGS WITH SUCH OFFICERS.
THE AUTHORITY FOUND THAT, IN THOSE CIRCUMSTANCES, NAMEPLATES CONSTITUTED
A "MEANS" OF PERFORMING THE WORK OF THE AGENCY, WITHIN THE MEANING OF
SECTION 7106(B)(1) OF THE STATUTE, /5/ IN THAT THEY WERE AN INSTRUMENT
USED TO ACCOMPLISH THAT ASPECT OF THE WORK OF A CUSTOMS OFFICER WHICH
INVOLVED CONTACT WITH THE PUBLIC. THE UNION, HOWEVER, TO AVOID ADVERSE
EFFECTS ON THE PRIVACY AND SAFETY OF THE OFFICERS AND THEIR FAMILIES,
PROPOSED THAT THE NAMEPLATES CARRY, INSTEAD OF AN EMPLOYEE'S ACTUAL FULL
NAME, ANY OF A VARIETY OF IDENTIFYING SYMBOLS SUCH AS ONLY FIRST OR ONLY
LAST NAMES WITH INITIALS OR PSEUDONYMS. THE AUTHORITY HELD THE PROPOSAL
TO BE WITHIN THE DUTY TO BARGAIN, ON THE BASIS THAT THE AGENCY DID NOT
SHOW AND IT WAS NOT OTHERWISE APPARENT THAT THE AGENCY'S OBJECTIVE OF
PERSONALIZING OFFICERS' CONTACTS WITH THE PUBLIC COULD ONLY BE ACHIEVED
IF THE NAMEPLATES DISPLAYED ACTUAL AND COMPLETE NAMES. CONSEQUENTLY,
NEGOTIATIONS ON THE FORMATS PROPOSED BY THE UNION WOULD NOT PREVENT THE
AGENCY FROM REQUIRING NAMEPLATES TO BE WORN FOR THE OBJECTIVE INTENDED.
SIMILARLY, IN THE PRESENT DISPUTE, THE AGENCY HAS DETERMINED THAT ITS
UNIFORMED OFFICERS WILL WEAR IDENTIFICATION PLATES AS A "MEANS" OF
PERFORMING THE AGENCY'S WORK INVOLVING PUBLIC CONTACT. HOWEVER, IN THE
INSTANT CASE, THE AGENCY'S AVOWED PURPOSE IN REQUIRING NAMEPLATES IS NOT
TO "PERSONALIZE" THE CONTACTS BETWEEN ITS OFFICERS AND THE PUBLIC.
RATHER, THE PURPOSE IS TO PROVIDE FOR THE IDENTIFICATION OF ITS OFFICERS
AND TO FACILITATE THE WORK OF SUPERVISORY PERSONNEL IN MAKING
ASSIGNMENTS FOR THE OFFICERS, AND IN CONDUCTING ON-SITE INSPECTIONS. IN
THIS REGARD, THE AGENCY HAS NOT SHOWN AND IT IS NOT APPARENT TO THE
AUTHORITY THAT THESE OBJECTIVES CAN ONLY BE ACHIEVED BY THE USE OF
IDENTIFICATION PLATES WHICH DISPLAY THE OFFICERS' NAMES, RATHER THAN
PLATES WHICH DISPLAY IDENTIFICATION NUMBERS OR SOME COMBINATION OF
NUMBERS AND LETTERS, AS THE UNION PROPOSES. FURTHERMORE, AS IN THE
CUSTOMS SERVICE CASE, THE UNION HAS STATED THAT THE USE OF NAMEPLATES
MAY ADVERSELY AFFECT THE EMPLOYEES' OFF-THE-JOB PRIVACY.
ACCORDINGLY, THE AGENCY REQUIREMENT THAT OFFICERS WEAR IDENTIFICATION
PLATES CONSTITUTES A DECISION AS TO THE "MEANS" OF PERFORMING ITS WORK
PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE. HOWEVER, THE PROPOSAL
THAT IDENTIFYING SYMBOLS OTHER THAN AN EMPLOYEE'S NAME BE USED ON SUCH
PLATES WOULD CONSTITUTE AN "APPROPRIATE ARRANGEMENT" FOR EMPLOYEES WHO
MAY BE ADVERSELY AFFECTED BY SUCH A DECISION. THUS, PURSUANT TO SECTION
7106(B)(3) OF THE STATUTE, /6/ THE PROPOSAL IS WITHIN THE DUTY TO
BARGAIN.
UNION PROPOSAL 3
(1) THE PERSONAL APPEARANCE OF EMPLOYEES IS A MATTER OF CONCERN TO
BOTH THE UNION AND THE
SERVICE. UNIFORMS AND CIVILIAN ATTIRE WORN WHILE IN AN ON-DUTY
STATUS WILL BE CLEAN AND KEPT
IN GOOD REPAIR.
(2) THE NEGOTIATED GROOMING STANDARD AND THE APPLICATION OF THAT
STANDARD WILL NOT
DISCRIMINATE ON THE BASIS OF SEX.
(3) PERSONAL APPEARANCE AND GROOMING STANDARDS SHALL BE AT THE
DISCRETION OF THE INDIVIDUAL
EMPLOYEE, SUBJECT TO THE LIMITATIONS SET FORTH IN THIS PORTION OF THE
CONTRACT. PERSONAL
APPEARANCE AND GROOMING WILL NOT IMPEDE THE GENERAL PUBLIC'S READY
RECOGNITION OF THE EMPLOYEE
AS A REPRESENTATIVE OF THE IMMIGRATION AND NATURALIZATION SERVICE.
(4) THE SERVICE AND THE UNION AGREE THAT THE OFFICIAL UNIFORM, WHEN
WORN IN ITS ENTIRETY,
AFFORDS SUFFICIENT IDENTIFICATION OF THE EMPLOYEE AS A REPRESENTATIVE
OF THE IMMIGRATION AND
NATURALIZATION SERVICE.
(5) BEARDS, MUSTACHES AND HAIR ON THE HEAD SHALL BE NEATLY TRIMMED,
CLEAN AND SHALL NOT
INTERFERE WITH THE EMPLOYEE'S VISION OR THE WEARING OF HEADGEAR THAT
MAY BE REQUIRED AS A PART
OF THE OFFICIAL UNIFORM.
IN ITS STATEMENT OF POSITION, THE AGENCY, WITHOUT CONTRADICTION BY
THE UNION, DESCRIBES THE DISPUTE CONCERNING THE PROPOSAL AS FOLLOWS:
THE (UNION) MADE IT CLEAR AT THE BARGAINING TABLE THAT THE UNDERLYING
PURPOSE OF THE
LANGUAGE OF SUBSECTIONS (2)-(5) . . . IS TO PERMIT MALE UNIFORMED
IMMIGRATION OFFICERS TO WEAR
THEIR HAIR SO THAT IT FALLS OVER THEIR COLLAR AND/OR OVER THEIR EARS,
TO GROW BEARDS AND TO
LET MUSTACHES GROW TO LENGTHS THAT EXTEND MORE THAN 1/4 INCH BEYOND
THE CORNER OF THE MOUTH.
BASED ON THIS STATEMENT AND THE RECORD AS A WHOLE, THE PARTIES'
DISPUTE WITH RESPECT TO THE PROPOSAL CENTERS ON GROOMING STANDARDS FOR
HAIR FOR MALE UNIFORMED OFFICERS.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL, AS IT RELATES TO GROOMING
STANDARDS, IS NOT WITHIN THE DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY,
PRINCIPALLY BECAUSE IT CONFLICTS WITH THE AGENCY'S RIGHT TO DETERMINE
THE "MEANS" OF PERFORMING WORK UNDER SECTION 7106(B)(1) OF THE STATUTE,
OR BECAUSE IT CONFLICTS WITH THE AGENCY'S RIGHT TO DETERMINE ITS
"ORGANIZATION" UNDER SECTION 7106(A)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL DOES NOT CONFLICT WITH THE
AGENCY'S RIGHT TO DETERMINE THE MEANS OF PERFORMING WORK WITHIN THE
MEANING OF SECTION 7106(B)(1) OR ITS RIGHT TO DETERMINE ITS ORGANIZATION
WITHIN THE MEANING OF SECTION 7106(A)(1) OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS, (5
CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
(OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE
PROPOSAL. /7/
REASONS: THE AGENCY HAS DETERMINED THAT ITS UNIFORMED OFFICERS MUST
ADHERE TO GROOMING STANDARDS TO ENSURE THAT SUCH OFFICERS ARE READILY
RECOGNIZED AS REPRESENTATIVES OF THE AGENCY IN THEIR DEALINGS WITH THE
PUBLIC. IN THE CIRCUMSTANCES HERE PRESENTED, SUCH A DETERMINATION
CONSTITUTES A DECISION REGARDING THE "MEANS" OF PERFORMING THE AGENCY'S
WORK UNDER SECTION 7106(B)(1) OF THE STATUTE. /8/ HOWEVER, IT IS NOTED
THAT THE PROPOSAL, PROVIDING FOR GROOMING STANDARDS VARYING FROM THE
AGENCY'S STANDARDS, INCLUDES THE EXPRESS QUALIFICATION THAT "(P)ERSONAL
APPEARANCE AND GROOMING WILL NOT IMPEDE THE GENERAL PUBLIC'S READY
RECOGNITION OF THE EMPLOYEE AS A REPRESENTATIVE OF THE IMMIGRATION AND
NATURALIZATION SERVICE." IN THIS REGARD, THE AGENCY'S OBJECTIVE IS
EXPRESSLY INCORPORATED INTO THE PROPOSAL. FURTHERMORE, WHILE THE UNION
STATES, WITHOUT DISPUTE FROM THE AGENCY, THAT THE LATTER'S DECISION TO
REQUIRE GROOMING STANDARDS AFFECTS THE EMPLOYEES' OFF-THE-JOB PRIVACY,
THE AGENCY HAS NOT SHOWN AND IT IS NOT APPARENT TO THE AUTHORITY THAT
THE AGENCY'S OBJECTIVE OF PROVIDING FOR THE READY RECOGNITION OF ITS
UNIFORMED OFFICERS BY THE PUBLIC CAN ONLY BE ACHIEVED BY ITS
UNILATERALLY ESTABLISHED STANDARDS. ACCORDINGLY, IN THESE
CIRCUMSTANCES, IT IS DETERMINED THAT WHILE THE AGENCY'S REQUIREMENT THAT
THERE SHALL BE GROOMING STANDARDS CONSTITUTES A DECISION REGARDING
"MEANS" UNDER SECTION 7106(B)(1) OF THE STATUTE, THE PROPOSAL
CONSTITUTES A "APPROPRIATE ARRANGEMENT" FOR EMPLOYEES ADVERSELY AFFECTED
BY SUCH A DECISION PURSUANT TO SECTION 7106(B)(3).
AS TO THE AGENCY'S CONTENTION REGARDING ITS RIGHT TO DETERMINE ITS
ORGANIZATION UNDER SECTION 7106(A)(1) OF THE STATUTE, /9/ THE TERM
"ORGANIZATION" GENERALLY REFERS TO THE ADMINISTRATIVE AND FUNCTIONAL
STRUCTURE OF AN ENTERPRISE, INSTITUTION, ETC., INCLUDING THE
RELATIONSHIPS OF PERSONNEL THROUGH LINES OF AUTHORITY AND RESPONSIBILITY
WITH DELEGATED AND ASSIGNED DUTIES. /10/ THE INSTANT PROPOSAL IS NOT
DIRECTLY CONCERNED WITH OR INTEGRALLY RELATED TO ANY OF THESE MATTERS.
ACCORDINGLY, THE AGENCY'S CONTENTIONS IN THIS AREA ALSO CANNOT BE
SUSTAINED. /11/
UNION PROPOSAL 4
IN ITS STATEMENT OF POSITION, THE AGENCY STATES THAT THE PARTIES HAVE
REACHED AGREEMENT ON A CLARIFICATION OF THIS PROPOSAL WHICH HAS HAD THE
EFFECT OF ELIMINATING THE AGENCY'S PRIOR OBJECTIONS. THE UNION TACITLY
CONCURS WITH THIS STATEMENT. THE AUTHORITY CONCLUDES THAT THE PARTIES'
DISPUTE CONCERNING THIS PROPOSAL'S NEGOTIABILITY HAS BEEN RENDERED MOOT.
ACCORDINGLY, WE NEED NOT CONSIDER THE PROPOSAL FURTHER HEREIN.
UNION PROPOSAL 5
THE SERVICE AGREES THAT PRIOR TO QUESTIONING ANY EMPLOYEE ON A MATTER
RELATING TO A
DISCIPLINARY ACTION, THE EMPLOYEE WILL BE ADVISED IN WRITING OF THE
RIGHT TO BE REPRESENTED BY
THE UNION OR A PERSONAL REPRESENTATIVE APPROVED BY THE UNION.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT CONCERN A MATTER
DIRECTLY RELATED TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES
WITHIN THE MEANING OF SECTION 7103(A)(14); OR BECAUSE IT WOULD CONFLICT
WITH ENTITLEMENTS TO REPRESENTATION PROVIDED IN SECTION 7114(A)(2), OR
MANAGEMENT'S RIGHT TO DIRECT EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
THE STATUTE.
CONCLUSION AND ORDER: THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN.
IT IS DIRECTLY CONCERNED WITH THE CONDITIONS OF EMPLOYMENT OF UNIT
EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE; AND
IT WOULD NOT CONFLICT WITH SECTION 7114(A)(2) OR SECTION 7106(A)(2)(A)
OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE
PARTIES) BARGAIN CONCERNING THE PROPOSAL. /12/
REASONS: ACCORDING TO THE UNION, THIS PROPOSAL WOULD GIVE BARGAINING
UNIT EMPLOYEES THE RIGHT TO BE REPRESENTED BY THE UNION OR AN APPROVED
PERSONAL REPRESENTATIVE DURING CERTAIN MANAGEMENT INQUIRIES FOR WHICH NO
RIGHT TO BE REPRESENTED IS ESTABLISHED BY THE STATUTE. MORE
PARTICULARLY, THE PROPOSAL WOULD ESTABLISH SUCH RIGHT AND REQUIRE
WRITTEN NOTICE OF IT TO ANY EMPLOYEE ORDERED BY MANAGEMENT TO SUBMIT TO
INTERROGATION PRIOR TO THE EMPLOYEE'S BEING QUESTIONED "ON A MATTER
RELATING TO A DISCIPLINARY ACTION" CONCERNING THAT OR ANOTHER EMPLOYEE.
THE UNION ASSERTS AND THE AGENCY TACITLY CONCEDES THAT, IN THE
CIRCUMSTANCES COVERED BY THE PROPOSAL, "THE EMPLOYER REQUIRES THAT
EMPLOYEES BE SWORN WHEN ANSWERING THE QUESTIONS DURING AN
INTERROGATION."
THE AGENCY DISPUTES THE NEGOTIABILITY OF THE PROPOSAL INSOFAR AS IT
WOULD APPLY IN VARIOUS CIRCUMSTANCES: WHERE DISCIPLINARY ACTION HAS NOT
BEEN PROPOSED OR CARRIED OUT AGAINST THE EMPLOYEE BEING QUESTIONED;
WHERE SUSPICION HAS NOT CENTERED ON THAT EMPLOYEE; OR WHERE THE
EMPLOYEE DOES NOT HAVE A REASONABLE EXPECTATION OF DISCIPLINARY ACTION.
IN THESE SITUATIONS, THE AGENCY ESSENTIALLY ARGUES THAT THE PROPOSAL
DOES NOT DIRECTLY CONCERN MATTERS RELATED TO THE CONDITIONS OF
EMPLOYMENT OF THE EMPLOYEE BEING QUESTIONED UNDER SECTION 7103(A)(14).
RATHER, IN ITS VIEW, THE CONNECTION BETWEEN THE PROPOSAL AND "CONDITIONS
OF EMPLOYMENT" WOULD BE ONLY INDIRECT, REMOTE AND SPECULATIVE. THIS
AGENCY CONTENTION CANNOT BE SUSTAINED.
THE QUESTIONING UNDER OATH OF EMPLOYEES BY MANAGEMENT ON MATTERS
RELATING TO DISCIPLINARY ACTIONS PLAINLY IS A PERSONNEL POLICY AND
PRACTICE AND A MATTER AFFECTING THE WORKING CONDITIONS OF THE EMPLOYEES
INVOLVED WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE. THE
PARTICIPATION OF EMPLOYEES IN SUCH INTERROGATIONS IS UNDER COMPULSION
DERIVING SOLELY FROM THE EMPLOYMENT RELATIONSHIP AND CONSEQUENCES MAY
FLOW FROM THE INTERROGATIONS WHICH WOULD DIRECTLY AFFECT THE WORK
SITUATION AND EMPLOYMENT RELATIONSHIP OF THE EMPLOYEES QUESTIONED. /13/
ACCORDINGLY, IT IS CONCLUDED THAT THE PROPOSAL DIRECTLY RELATES TO
CONDITIONS OF EMPLOYMENT AFFECTING EMPLOYEES IN THE BARGAINING UNIT SO
AS TO BE WITHIN THE SCOPE OF BARGAINING UNLESS OTHERWISE EXCLUDED.
THE AGENCY'S SECOND ARGUMENT IS THAT THE PROPOSAL IS INCONSISTENT
WITH THE STATUTE INSOFAR AS IT WOULD ESTABLISH A RIGHT TO REPRESENTATION
IN CIRCUMSTANCES BEYOND THOSE FOR WHICH THERE IS SUCH AN ENTITLEMENT
UNDER SECTION 7114(A)(2). /14/ THIS ARGUMENT IS INAPPOSITE, HOWEVER:
THE PROPOSAL WOULD CREATE A CONTRACTUAL RIGHT FOR UNIT EMPLOYEES TO BE
REPRESENTED DURING QUESTIONING. IT IS NOT BASED UPON INTERPRETATION AND
APPLICATION OF SECTION 7114(A)(2) OF THE STATUTE. MOREOVER, NOTHING
CONTAINED IN THAT SECTION OF THE STATUTE WOULD PRECLUDE THE UNION FROM
SEEKING TO NEGOTIATE PROCEDURAL PROTECTIONS FOR EMPLOYEES BEYOND THOSE
CREATED BY THE STATUTE. /15/ ACCORDINGLY, SECTION 7114(A)(2) OF THE
STATUTE DOES NOT PROVIDE A BASIS FOR DETERMINING THAT THIS PROPOSAL IS
OUTSIDE OF THE AGENCY'S DUTY TO BARGAIN.
FINALLY, THE AGENCY ARGUES THAT THIS PROPOSAL WOULD CONFLICT WITH ITS
RIGHT TO DIRECT EMPLOYEES PURSUANT TO SECTION 7106(A)(2)(A) OF THE
STATUTE /16/ BECAUSE IT WOULD INTERFERE WITH THE AGENCY'S OBTAINING
TIMELY, ACCURATE, AND TRUTHFUL INFORMATION. THE AUTHORITY FINDS NOTHING
TO SUPPORT SUCH A CONCLUSION, EITHER IN THE LANGUAGE OF THE PROPOSAL OR
THE UNION'S STATEMENT AS TO ITS MEANING. THE PROPOSAL LITERALLY
REQUIRES ONLY THAT EMPLOYEES WILL BE GIVEN NOTICE OF THEIR RIGHT TO
REPRESENTATION PRIOR TO QUESTIONING. IMPLICITLY AND AS EXPLAINED BY THE
UNION, IT REQUIRES THE OPPORTUNITY FOR SUCH REPRESENTATION TO OCCUR.
FURTHERMORE, AS TO TIMELINESS, EVEN ASSUMING SOME DELAY WOULD INEVITABLY
RESULT FROM APPLICATION OF THE PROPOSED PROCEDURES, THE AGENCY HAS NOT
ESTABLISHED THAT SUCH DELAY WOULD PREVENT IT, ULTIMATELY, FROM ACTING
PURSUANT TO ITS RESERVED RIGHTS UNDER THE STATUTE. CONSEQUENTLY, SUCH
DELAY IS NOT A BASIS FOR DETERMINING THAT THIS PROPOSAL IS OUTSIDE OF
THE DUTY TO BARGAIN UNDER SECTION 7106 OF THE STATUTE. /17/
UNION PROPOSAL 6
WHEN AN EMPLOYEE HAS A REASONABLE EXPECTATION THAT DISCIPLINARY
ACTION MAY BE BASED UPON
THE RESULTS OF AN INTERVIEW WITH A SUPERVISOR OR OTHER MANAGEMENT
OFFICIAL AND ELECTS TO HAVE
A REPRESENTATIVE PRESENT, THE INTERVIEW OR INTERROGATION WILL BE
POSTPONED FOR NO MORE THAN
TWO WORK DAYS FROM THE TIME THE EMPLOYEE RECEIVES NOTIFICATION OF THE
INTERROGATION.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT CONCERN A MATTER
DIRECTLY RELATED TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES
WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE; OR BECAUSE IT
WOULD CONFLICT WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL
SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE, /18/ OR THE
AGENCY'S RIGHTS TO DIRECT OR DISCIPLINE ITS EMPLOYEES UNDER SECTION
7106(A)(2)(A) OF THE STATUTE. /19/
OPINION
CONCLUSION AND ORDER: THE PROPOSAL IS CONCERNED WITH CONDITIONS OF
EMPLOYMENT, DOES NOT INTERFERE WITH THE AGENCY'S RIGHT TO DETERMINE ITS
INTERNAL SECURITY PRACTICES OR ITS RIGHT TO DIRECT OR DISCIPLINE ITS
EMPLOYEES AND THUS IS WITHIN THE AGENCY'S DUTY TO BARGAIN. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
(OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE
PROPOSAL. /20/
REASONS: BASED ON THE RECORD, THE DELAY WHICH IS THE SUBJECT OF THE
PROPOSAL IS FOR THE PURPOSE OF ARRANGING REPRESENTATION FOR AN EMPLOYEE
TO BE QUESTIONED IN AN INTERVIEW OR INTERROGATION. THE AGENCY CONTENDS
THAT THE PROPOSAL IS NOT CONCERNED WITH THE "CONDITIONS OF EMPLOYMENT"
OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE
STATUTE. AS PREVIOUSLY EXPLAINED, IN CONNECTION WITH PROPOSAL 5, THE
PARTICIPATION OF EMPLOYEES AT THE INTERROGATIONS IS UNDER COMPULSION
DERIVING SOLELY FROM THE EMPLOYMENT RELATIONSHIP AND CONSEQUENCES MAY
FLOW FROM THE INTERROGATION WHICH WOULD DIRECTLY AFFECT THE WORK
SITUATION AND EMPLOYMENT RELATIONSHIP OF THE EMPLOYEES QUESTIONED;
THUS, THE AGENCY'S ARGUMENT THAT THE PROPOSAL DOES NOT CONCERN
CONDITIONS OF EMPLOYMENT CANNOT BE SUSTAINED.
THE AGENCY ALSO CONTENDS THAT THERE ARE SITUATIONS RELATING TO ITS
LAW ENFORCEMENT FUNCTIONS WHERE ITS NEED FOR THE INFORMATION WHICH MAY
BE OBTAINED THROUGH AN INTERVIEW OR INTERROGATION IS IMMEDIATE, AND THE
DELAY CONTEMPLATED BY THE PROPOSAL TO PROVIDE FOR REPRESENTATION WOULD
INTERFERE WITH ITS ABILITY TO OBTAIN THIS INFORMATION. AS SUCH, IN ITS
VIEW, THE PROPOSAL WOULD INTERFERE WITH ITS RIGHT TO DETERMINE ITS
INTERNAL SECURITY PRACTICES AND ITS RIGHT TO DIRECT OR DISCIPLINE
EMPLOYEES UNDER, RESPECTIVELY, SECTION 7106(A)(1) AND SECTION
7106(A)(2)(A) OF THE STATUTE.
AS WAS NOTED WITH RESPECT TO PROPOSAL 5, A MERE DELAY IN THE EXERCISE
OF MANAGEMENT'S AUTHORITY UNDER SECTION 7106 OF THE STATUTE IS NOT A
BASIS FOR DETERMINING THAT THE PROPOSAL IS NOT WITHIN AN AGENCY'S DUTY
TO BARGAIN. /21/ THE AGENCY HAS NOT SHOWN THAT THE DELAY CONTEMPLATED
BY THE PROPOSAL WOULD NEGATE ITS RIGHTS UNDER SECTION 7106. ALTHOUGH
THE BARGAINING PROCESS LENDS ITSELF TO A CONSIDERATION OF THE
CONSEQUENCES OF THE PROPOSAL, SHOULD MATTERS OF CONCERN TO EITHER PARTY,
SUCH AS THE APPLICATION OF THE DELAY TO A SPECIFIC SITUATION, PREVENT
THE PARTIES FROM REACHING AGREEMENT, SUCH CONSIDERATIONS COULD BE
PRESENTED TO THE FEDERAL SERVICE IMPASSES PANEL IN A PROCEEDING TO
RESOLVE A NEGOTIATION IMPASSE PURSUANT TO SECTION 7119 OF THE STATUTE.
UNION PROPOSAL 7
SHOULD AN EMPLOYEE BE REQUIRED TO GIVE A WRITTEN STATEMENT ON A
MATTER WHICH COULD RESULT
IN DISCIPLINARY ACTION, REPRESENTATION WILL BE MADE AVAILABLE TO THE
EMPLOYEE BEFORE GIVING
THE STATEMENT.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT IS NOT DIRECTLY RELATED TO
THE WORKING CONDITIONS OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION
7103(A)(14) OF THE STATUTE, OR BECAUSE IT WOULD CONFLICT WITH
MANAGEMENT'S RIGHTS TO DIRECT AND ASSIGN WORK TO EMPLOYEES UNDER SECTION
7106(A)(2)(A) AND (B), OR MANAGEMENT'S RIGHT TO DETERMINE THE METHODS
AND MEANS BY WHICH ITS WORK IS PERFORMED PURSUANT TO SECTION 7106(B)(1)
OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
BARGAIN. IT IS CONCERNED WITH THE CONDITIONS OF EMPLOYMENT OF UNIT
EMPLOYEES WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE, AND
IT DOES NOT CONFLICT WITH MANAGEMENT'S RIGHT TO DIRECT EMPLOYEES, ASSIGN
WORK TO EMPLOYEES, OR DETERMINE THE METHODS OR MEANS BY WHICH ITS WORK
IS PERFORMED UNDER, RESPECTIVELY, SECTION 7106(A)(2)(A) AND (B) AND
SECTION 7106(B)(1) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION
2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)),
IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED
TO BY THE PARTIES) BARGAIN CONCERNING THIS PROPOSAL. /22/
REASONS: THE AGENCY AGAIN ARGUES THAT THE PROPOSAL DOES NOT DEAL
WITH "CONDITIONS OF EMPLOYMENT." AS PREVIOUSLY DISCUSSED IN CONNECTION
WITH UNION PROPOSALS 5 AND 6, AND FOR THE REASONS STATED IN CONNECTION
WITH THOSE PROPOSALS, THE INSTANT PROPOSAL IS CONCERNED WITH THE
CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHIN THE MEANING OF SECTION
7103(A)(14). THE AGENCY'S ARGUMENTS TO THE CONTRARY CANNOT BE
SUSTAINED.
THE AGENCY'S ARGUMENTS CONCERNING ITS RIGHT TO DIRECT EMPLOYEES, /23/
TO ASSIGN WORK TO EMPLOYEES, /24/ AND TO DETERMINE THE METHODS AND MEANS
BY WHICH ITS WORK IS PERFORMED /25/ ARE INTERRELATED. EACH IS BASED
UPON THE AGENCY'S MISINTERPRETATION OF THE PROPOSAL'S INTENDED EFFECT.
BASED ON ITS EXPRESS LANGUAGE AND THE UNION'S EXPLANATION OF ITS INTENT,
WHICH IS CONSISTENT WITH THE PROPOSAL, THE PROPOSAL WOULD ONLY REQUIRE
THAT EMPLOYEES WHO MUST GIVE WRITTEN STATEMENTS SHALL HAVE THE
OPPORTUNITY FOR REPRESENTATION BEFORE THEY GIVE SUCH STATEMENTS.
CONTRARY TO THE AGENCY'S ARGUMENTS, THIS REQUIREMENT DOES NOT AFFECT THE
AGENCY'S DISCRETION TO CONDUCT INQUIRIES, TO DETERMINE WHAT QUESTIONS
SHOULD BE ASKED OR ANSWERED, OR ABSOLVE THE EMPLOYEE FROM ANSWERING ANY
QUESTION TO THE BEST OF HIS OR HER ABILITY. NOR DOES IT IMPLY, AS
ARGUED BY THE AGENCY, THAT TWO EMPLOYEES WILL COMPLETE THE STATEMENT,
RATHER THAN ONLY ONE.
FURTHER, AS TO THE AGENCY'S ARGUMENT THAT THE PROPOSAL IS INTENDED TO
BE APPLICABLE TO ROUTINE, DAY-TO-DAY REPORTS, THE UNION HAS EXPLAINED,
IN ESSENCE, THAT THE PROPOSAL IS ONLY INTENDED TO BE APPLICABLE TO THOSE
SITUATIONS IN WHICH THE AGENCY REQUIRES A WRITTEN STATEMENT IN
CONNECTION WITH A FORMAL INVESTIGATION OF AN INCIDENT OR AN EMPLOYEE'S
CONDUCT WHICH MAY INVOLVE A VIOLATION OF LAW, THE AGENCY'S REGULATIONS,
OR OTHER AUTHORITIES WHICH MAY REQUIRE DISCIPLINARY ACTION. THIS IS THE
INTERPRETATION WHICH THE AUTHORITY ADOPTS FOR THE PURPOSE OF THIS
DECISION AND, ACCORDINGLY, IT IS NOT NECESSARY TO CONSIDER THE
NEGOTIABILITY OF THE PROPOSAL AS IF IT WERE TO APPLY TO THE ROUTINE
REPORTS WHICH EMPLOYEES MAY BE REQUIRED TO COMPLETE, ON A DAILY BASIS,
UNRELATED TO AN INVESTIGATION.
AS TO THE AGENCY'S ARGUMENT THAT IMPLEMENTATION OF THE PROPOSAL MAY
HAVE THE EFFECT OF DELAYING ITS ACTIONS, AS WITH THE PRIOR PROPOSALS,
THE AGENCY HAS NOT SHOWN THAT THE DELAYS WOULD HAVE THE PRACTICAL EFFECT
OF PREVENTING THE AGENCY FROM ACTING AT ALL TO EXERCISE OF ITS RIGHTS
UNDER SECTION 7106. /26/
UNION PROPOSAL 8
WHILE EMPLOYEES MAY BE REQUIRED TO FURNISH INFORMATION RELATING TO
MATTERS OF EMPLOYMENT
(IN) CONFLICT-OF-INTEREST SITUATIONS, NO EMPLOYEE WILL BE REQUIRED TO
GIVE A STATEMENT UNDER
OATH EXCEPT AS MAY BE REQUIRED BY LAW.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE DISPUTED PROPOSAL IS OUTSIDE THE
AGENCY'S DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT
RELATE TO THE CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES WITHIN THE
MEANING OF SECTION 7103(A)(14) OF THE STATUTE; OR BECAUSE IT WOULD
CONFLICT WITH 5 U.S.C. 303(A), THE AGENCY'S RIGHT TO DETERMINE ITS
INTERNAL SECURITY PRACTICES PURSUANT TO SECTION 7106(A)(1) OF THE
STATUTE, OR THE AGENCY'S RIGHT TO DISCIPLINE ITS EMPLOYEES PURSUANT TO
SECTION 7106(A)(2)(A) OF THE STATUTE.
CONCLUSION AND ORDER: THE PROPOSAL RELATES TO CONDITIONS OF
EMPLOYMENT OF UNIT EMPLOYEES BUT IS OUTSIDE THE AGENCY'S DUTY TO BARGAIN
IN THAT IT WOULD CONFLICT WITH THE AGENCY'S RIGHT TO DETERMINE ITS
INTERNAL SECURITY PRACTICES PURSUANT TO SECTION 7106(A)(1) OF THE
STATUTE. /27/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
THAT THE PETITION FOR REVIEW OF THIS DISPUTED PROPOSAL BE DISMISSED.
REASONS: THE PROPOSAL CONCERNS REQUIRING EMPLOYEES TO FURNISH
INFORMATION RELATING TO "CONFLICT-OF-INTEREST SITUATIONS" AND WOULD
PREVENT THE AGENCY FROM REQUIRING STATEMENTS BY EMPLOYEES IN THIS
CONNECTION TO BE MADE UNDER OATH EXCEPT WHERE A STATEMENT UNDER OATH IS
REQUIRED BY LAW. /28/ WITH RESPECT TO THE AGENCY'S ALLEGATION THAT THE
PROPOSAL DOES NOT CONCERN CONDITIONS OF EMPLOYMENT, FOR THE REASONS
STATED IN CONNECTION WITH PROPOSALS 5 AND 6, THIS CONTENTION CANNOT BE
SUSTAINED.
THE AGENCY FURTHER CONTENDS THAT THE PROPOSAL'S RESTRICTION ON THE
USE OF SWORN STATEMENTS WOULD INTERFERE WITH ITS RIGHT TO DETERMINE ITS
INTERNAL SECURITY PRACTICES, PURSUANT TO SECTION 7106(A)(1) OF THE
STATUTE. /29/ THE AUTHORITY HAS DETERMINED THAT AN AGENCY'S RIGHT TO
DETERMINE INTERNAL SECURITY PRACTICES UNDER THE STATUTE EXTENDS TO THE
ESTABLISHMENT OF RULES TO PREVENT DISRUPTION OF ITS OPERATIONS,
UNWARRANTED DISCLOSURE OF PRIVILEGED INFORMATION, AND DESTRUCTION OF ITS
PROPERTY. /30/ IN THE OPINION OF THE AUTHORITY, THE RIGHT TO DETERMINE
INTERNAL SECURITY PRACTICES ALSO EXTENDS TO THE ESTABLISHMENT OF RULES
APPLICABLE TO INTERNAL INVESTIGATIONS RELATING TO THE INTEGRITY OF AN
AGENCY'S OPERATIONS VIS-A-VIS ACTUAL OR ALLEGED CONFLICTS OF INTEREST.
IN THIS CONNECTION, THE AGENCY HAS STATED THAT IT HAS ESTABLISHED A
RULE, IN CONDUCTING INVESTIGATIONS RELATING TO THE INTEGRITY OF AGENCY
OPERATIONS, OF REQUIRING OATHS TO ENSURE OBTAINING TRUTHFUL AND RELIABLE
INFORMATION IN SUCH CIRCUMSTANCES. THUS, THE AGENCY'S DECISION TO
REQUIRE OATHS TO ENSURE ITS OBTAINING TRUTHFUL AND RELIABLE INFORMATION
IN CONDUCTING INVESTIGATIONS, WHICH ARE THE SUBJECT OF THIS DISPUTED
PROPOSAL, IS AN INTERNAL SECURITY PRACTICE UNDER SECTION 7106(A)(1).
ACCORDINGLY, SINCE THE PROPOSAL WOULD PREVENT THE AGENCY FROM
ADMINISTERING OATHS IN SUCH INVESTIGATIONS EXCEPT WHERE IT MUST DO SO
UNDER LAW, THE PROPOSAL IS NOT WITHIN THE AGENCY'S DUTY TO BARGAIN. OF
COURSE, PURSUANT TO THE PROVISIONS OF SECTION 7106(B)(2) OF THE STATUTE,
THE PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE IN
EXERCISING THEIR AUTHORITY TO DETERMINE INTERNAL SECURITY PRACTICES,
INCLUDING THE PROCEDURES TO BE FOLLOWED IN CONNECTION WITH THE USE OF
OATHS IN SPECIFIC SITUATIONS, WOULD BE WITHIN THE DUTY TO BARGAIN.
UNION PROPOSAL 9
WHEN A RECORDING IS MADE OF AN INTERVIEW THE EMPLOYEE OR THE
REPRESENTATIVE WILL BE ALLOWED
TO ALSO RECORD THE ENTIRE PROCEEDINGS. IF A TRANSCRIPT IS MADE THE
UNION WILL RECEIVE A COPY.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE DISPUTED PROPOSAL IS NOT WITHIN THE
AGENCY'S DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT
RELATE TO CONDITIONS OF EMPLOYMENT; OR BECAUSE IT WOULD CONFLICT WITH
THE REQUIREMENTS OF FEDERAL LAW (THE PRIVACY ACT (5 U.S.C. 552A) AND THE
FREEDOM OF INFORMATION ACT (5 U.S.C. 552)), THE FEDERAL PERSONNEL MANUAL
(FPM), OR THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY
PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE /31/ OR THE METHODS
AND MEANS OF PERFORMING WORK UNDER SECTION 7106(B)(1) OF THE STATUTE.
/32/
OPINION
CONCLUSION AND ORDER: THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
BECAUSE IT CONFLICTS WITH THE AGENCY'S RIGHT TO DETERMINE ITS INTERNAL
SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE. /33/
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THIS DISPUTED PROPOSAL BE DISMISSED.
REASONS: THE AGENCY'S ARGUMENTS THAT THE PROPOSAL DOES NOT PERTAIN
TO CONDITIONS OF EMPLOYMENT ARE SUBSTANTIALLY IDENTICAL TO THOSE
PREVIOUSLY CONSIDERED AND REJECTED IN CONNECTION WITH PROPOSALS 5-8.
FOR THE REASONS PREVIOUSLY STATED WITH RESPECT TO THOSE PROPOSALS, THE
AGENCY'S CLAIM THAT THE PROPOSAL DOES NOT CONCERN CONDITIONS OF
EMPLOYMENT CANNOT BE SUSTAINED.
BASED UPON THE RECORD, THE INTERVIEWS WHICH ARE THE SUBJECT OF THE
INSTANT PROPOSAL ARE PART OF THE AGENCY'S INTERNAL INVESTIGATIONS. THE
AGENCY STATES THAT TESTIMONY OBTAINED DURING SUCH INVESTIGATIONS FROM
PROSPECTIVE WITNESSES AS WELL AS EMPLOYEES SUSPECTED OF VIOLATIONS OF
LAW OR REGULATION FREQUENTLY CONTAIN SENSITIVE, CONFIDENTIAL AND
PERSONAL INFORMATION WHICH MAY OR MAY NOT RESULT IN PROSECUTION OF A
DISCIPLINARY OR CRIMINAL ACTION AGAINST AN EMPLOYEE. UNDER THESE
CIRCUMSTANCES, THE AGENCY CLAIMS THAT IN ORDER TO SAFEGUARD THE
ANONYMITY OF WITNESSES AND THE CONFIDENTIALITY OF THEIR TESTIMONY, TO
PREVENT PREMATURE DISCLOSURE OF INFORMATION WHICH MIGHT IMPEDE ITS
INVESTIGATIVE GOALS, AND TO PROTECT THE PRIVACY RIGHTS OF EMPLOYEE
SUSPECTS FROM DISCLOSURE OF UNSUPPORTED ALLEGATIONS, IT HAS A PRACTICE
OF RESTRICTING ACCESS TO SUCH INFORMATION.
AS DISCUSSED WITH RESPECT TO PROPOSAL 8, AN AGENCY'S RIGHT TO
DETERMINE ITS INTERNAL SECURITY PRACTICES PURSUANT TO SECTION 7106(A)(1)
OF THE STATUTE INCLUDES THE RIGHT TO ESTABLISH RULES TO SAFEGUARD THE
AGENCY'S PROPERTY AND TO PREVENT UNAUTHORIZED DISCLOSURE OF
INVESTIGATIVE FILES. THIS PROPOSAL WOULD GIVE THE UNION THE RIGHT TO
MAINTAIN RECORDINGS AND TRANSCRIBED COPIES OF ALL INTERVIEWS OF
EMPLOYEES. BY ITS TERMS, THE PROPOSAL WOULD APPLY WHETHER THE EMPLOYEE
HAS REQUESTED AND HAS BEEN ACCOMPANIED BY A REPRESENTATIVE OR WHETHER
THE EMPLOYEE HAS SUBMITTED TO THE QUESTIONING OR INTERROGATION,
INCLUDING AT HIS OR HER OWN REQUEST, WITHOUT THE PRESENCE OF A
REPRESENTATIVE. IN SUM, THE UNION'S PROPOSAL WOULD GRANT UNION
OFFICIALS ESSENTIALLY AN UNCONTROLLED RIGHT UNDER THE CONTRACT TO
MAINTAIN RECORDINGS AND TRANSCRIPTIONS OF AGENCY INVESTIGATIVE
INTERVIEWS CONTAINING PRIVILEGED AND CONFIDENTIAL INFORMATION. SUCH A
PROPOSAL WOULD DENY THE AGENCY'S AUTHORITY UNDER SECTION 7106(A)(1) OF
THE STATUTE TO PREVENT UNAUTHORIZED DISCLOSURE OF INVESTIGATIVE
MATERIAL, I.E., DETERMINE ITS INTERNAL SECURITY PRACTICES, AND THUS IS
OUTSIDE THE DUTY TO BARGAIN.
IT IS NOTED, HOWEVER, THAT THE AGENCY HAS STATED THAT IT HAS A
PRACTICE OF PROVIDING A TRANSCRIPT TO THE QUESTIONED EMPLOYEE UPON
REQUEST, WHICH PRACTICE IT APPARENTLY DOES NOT CONSIDER WILL IMPEDE THE
SAFEGUARDING OF ITS INVESTIGATIVE FILES. UNDER THESE CIRCUMSTANCES, THE
AGENCY'S RIGHT TO DETERMINE ITS INTERNAL SECURITY PRACTICES WOULD NOT BE
VIOLATED BY A PROPOSAL WHICH PROVIDES THAT A TRANSCRIPT BE GIVEN TO A
UNION IN CIRCUMSTANCES WHERE ITS REPRESENTATIVE WAS PRESENT AT THE
REQUEST OF THE QUESTIONED EMPLOYEE AND WHERE THERE HAS BEEN COMPLIANCE
WITH ALL APPLICABLE LAWS. FURTHER, THE RECORD INDICATES THE AGENCY'S
WILLINGNESS TO PROVIDE MATERIALS TO THE UNION IN CONNECTION WITH ITS
REPRESENTATIONAL RESPONSIBILITIES UNDER THE STATUTE AND NOTHING HEREIN
SHALL BE CONSTRUED AS PREVENTING THE UNION FROM OBTAINING NECESSARY
INFORMATION SUBJECT TO REQUIREMENTS OF THE PRIVACY ACT. /34/
UNION PROPOSAL 10
WHEN AN EMPLOYEE IS REQUIRED TO GIVE INFORMATION RELATING TO ANOTHER
EMPLOYEE, THE
OPPORTUNITY TO HAVE A REPRESENTATIVE PRESENT WILL BE PROVIDED PRIOR
TO QUESTIONING.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT DOES NOT RELATE TO THE
CONDITIONS OF EMPLOYMENT OF ITS EMPLOYEES, OR WOULD CONFLICT WITH
MANAGEMENT'S RIGHT TO DIRECT ITS EMPLOYEES PURSUANT TO SECTION
7106(A)(2)(A) OF THE STATUTE. /35/
OPINION
CONCLUSION AND ORDER: THE PROPOSAL IS CONCERNED WITH THE CONDITIONS
OF EMPLOYMENT OF THE AGENCY'S EMPLOYEES AND IT WOULD NOT CONFLICT WITH
THE AGENCY'S RIGHT TO DIRECT ITS EMPLOYEES UNDER SECTION 7106(A)(2)(A)
OF THE STATUTE. THEREFORE, IT IS WITHIN THE AGENCY'S DUTY TO BARGAIN.
/36/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES
AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY
SHALL UPON REQUEST (OR OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THIS PROPOSAL.
REASONS: THIS PROPOSAL REQUIRES THAT AN EMPLOYEE GIVING TESTIMONY
RELATING TO ANOTHER EMPLOYEE SHALL BE GIVEN AN OPPORTUNITY TO BE
REPRESENTED IN A MANNER SUBSTANTIALLY IDENTICAL TO PROPOSAL 7, SUPRA.
THE ONLY DIFFERENCES, THAT THE TESTIMONY COVERED BY THIS PROPOSAL MAY BE
ORAL WHEREAS THE TESTIMONY COVERED BY PROPOSAL 7 IS WRITTEN AND THAT
THIS PROPOSAL SPECIFICALLY APPLIES TO INFORMATION RELATING TO ANOTHER
EMPLOYEE, ARE NOT DETERMINATIVE OF WHETHER THERE IS A DUTY TO BARGAIN.
THE AGENCY'S ARGUMENTS WITH RESPECT TO THIS ARE THE SAME AS THOSE IT
RAISED AS TO PROPOSAL 7 AND THE AGENCY SIMILARLY MISINTERPRETS THE
INTENDED EFFECT OF THE PRESENT PROPOSAL.
CONSEQUENTLY, AS THIS PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM
PROPOSAL 7, WE FIND IT, LIKEWISE, TO BE WITHIN THE DUTY TO BARGAIN FOR
THE REASONS FULLY STATED HEREIN IN CONNECTION WITH THAT PROPOSAL.
UNION PROPOSAL 11
TERMINATION OF PROBATIONARY EMPLOYEES SHALL BE GRIEVABLE ON THE BASIS
OF WHETHER THE
SERVICE'S ACTIONS WERE REASONABLE AND NOT ARBITRARY AND CAPRICIOUS,
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN,
AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT WITH SECTION
7121(C)(4) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL DOES NOT CONFLICT WITH SECTION
7121(C)(4) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING THE PROPOSAL. /37/
REASONS: THE AGENCY AND THE OFFICE OF PERSONNEL MANAGEMENT (OPM),
WHICH HAS FILED AND AMICUS BRIEF AS TO THIS PROPOSAL, ESSENTIALLY ARGUE
THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE, IN
PROVIDING THAT GRIEVANCES CONCERNING THE TERMINATION OF PROBATIONARY
EMPLOYEES ARE COVERED BY THE NEGOTIATED GRIEVANCE PROCEDURE, THE
PROPOSAL WOULD CONFLICT WITH THE LANGUAGE OF SECTION 7121(C)(4) /38/ AS
WELL AS THE INTENT OF CONGRESS IN ENACTING THE CIVIL SERVICE REFORM ACT
OF 1978, PUB. L. NO. 95-454, 92 STAT. 1111 (CSRA). /39/
THIS ARGUMENT IS SUBSTANTIVELY IDENTICAL TO THE ARGUMENT REJECTED BY
THE AUTHORITY IN NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES DEPARTMENT
OF LABOR, 4 FLRA NO. 51 (1980). /40/ SINCE NO PERSUASIVE REASONS HAVE
BEEN PRESENTED WHICH WOULD WARRANT A CONTRARY RESULT ON THIS ISSUE IN
THE INSTANT CASE, THE HOLDING OF NATIONAL COUNCIL, SUPRA, THAT SECTION
7121(C)(4) DOES NOT MANDATE THE EXCLUSION OF GRIEVANCES OVER THE
SEPARATION OF PROBATIONERS FROM NEGOTIATED GRIEVANCE PROCEDURES, IS
HEREBY EXPRESSLY REAFFIRMED. /41/
THE APPLICABLE PROVISIONS OF SECTION 7121, WHICH SET FORTH THE SCOPE
OF GRIEVANCE PROCEDURES, ARE AS FOLLOWS:
SEC. 7121. GRIEVANCE PROCEDURES
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
SUBSECTION, THE
PROCEDURES SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES
WHICH FALL WITHIN ITS
COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION
SHALL--
(1) BE FAIR AND SIMPLE,
(2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
(3) INCLUDE PROCEDURES THAT--
(A) ASSURE AN EXCLUSIVE REPRESENTATIVE THE RIGHT, IN ITS OWN BEHALF
OR ON BEHALF OF ANY
EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO
PRESENT AND PROCESS
GRIEVANCES;
(B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE IN THE
EMPLOYEE'S OWN BEHALF,
AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
DURING THE GRIEVANCE
PROCEEDING; AND
(C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY.
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE
CONCERNING--
(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO
PROHIBITED POLITICAL ACTIVITIES);
(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR
(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR
PAY OF AN EMPLOYEE.
UNDER SECTION 7121(A)(1), PARTIES TO COLLECTIVE BARGAINING AGREEMENTS
UNDER THE STATUTE MUST INCLUDE, AS PART OF THEIR AGREEMENT, PROCEDURES
FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY.
THIS IS QUALIFIED, IN PART, BY SUBSECTION 7121(A)(2), WHICH PROVIDES
THAT "(A)NY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE GRIEVANCE PROCEDURES." IT WAS THE INTENT OF
CONGRESS THAT THE REQUIRED GRIEVANCE PROCEDURES SHALL EXTEND TO ALL
MATTERS WHICH MIGHT LAWFULLY BE COVERED UNLESS THE PARTIES AGREE THROUGH
THE COLLECTIVE BARGAINING PROCESS TO NARROWER COVERAGE. /42/ SECTION
7121(B) PROVIDES THAT THE PROCEDURES MUST HAVE CERTAIN CHARACTERISTICS;
E.G., THEY MUST BE "FAIR AND SIMPLE," THEY MUST PROVIDE FOR THE
"EXPEDITIOUS PROCESSING" OF GRIEVANCES, AND "ANY GRIEVANCE NOT
SATISFACTORILY SETTLED UNDER THE NEGOTIATED PROCEDURES SHALL BE SUBJECT
TO BINDING ARBITRATION WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY."
SECTION 7121(C) ENUMERATES CERTAIN MATTERS WHICH ARE EXCLUDED FROM
THE COVERAGE OF THE PROCEDURES. CLEARLY, THE INTENT OF THE EXCLUSIONS
IS TO PROHIBIT, AS A MATTER OF LAW, MATTERS COVERED BY ONE OF THE
EXCLUSIONS FROM BEING SUBMITTED FOR RESOLUTION UNDER THE NEGOTIATED
PROCEDURES. /43/
THE AGENCY AND THE OPM CONTEND THAT THE INSTANT PROPOSAL PROVIDING
FOR GRIEVANCES OVER THE TERMINATION OF PROBATIONARY EMPLOYEES FALLS
WITHIN THE AMBIT OF SECTION 7121(C)(4) WHICH EXCLUDES "ANY EXAMINATION,
CERTIFICATION, OR APPOINTMENT." THEY ASSERT THAT THE TERMS "EXAMINATION"
AND "APPOINTMENT" WERE INTENDED BY CONGRESS TO REFER TO THE PROBATIONARY
PERIOD, INCLUDING AN AGENCY'S ACTIONS IN EVALUATING A PROBATIONARY
EMPLOYEE DURING THE PROBATIONARY PERIOD. /44/ ACCORDINGLY, THEY CLAIM
THAT SECTION 7121(C)(4) EXCLUDES GRIEVANCES CONCERNING THE TERMINATION
OF A PROBATIONARY EMPLOYEE FROM THE COVERAGE OF THE NEGOTIATED GRIEVANCE
PROCEDURES AND, THEREFORE, THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY
TO BARGAIN.
IN NATIONAL COUNCIL, SUPRA, THE AUTHORITY DETERMINED THAT NOTHING IN
THE LANGUAGE OR LEGISLATIVE HISTORY OF SECTION 7121(C) SUPPORTS THIS
INTERPRETATION. THE AUTHORITY FOUND, RATHER, THAT THE REQUIREMENT OF
SECTION 7121 OF THE STATUTE THAT ALL COLLECTIVE BARGAINING AGREEMENTS
MUST PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES MUST BE READ IN
CONJUNCTION WITH THE DEFINITIONS OF "GRIEVANCE" AND "EMPLOYEE" PROVIDED
BY CONGRESS IN SUBSECTIONS 7103(A)(9) AND (A)(2), RESPECTIVELY, AS
FOLLOWS:
(9) "GRIEVANCE" MEANS ANY COMPLAINT-- A) BY ANY EMPLOYEE CONCERNING
ANY MATTER RELATING TO THE
EMPLOYMENT OF THE EMPLOYEE;
(B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF ANY
EMPLOYEE; OR
(C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING
AGREEMENT; OR
(II) ANY CLAIMED VIOLATION, MISINTERPRETATION OR MISAPPLICATION OF
ANY LAW, RULE, OR
REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)
(2) "EMPLOYEE" MEANS AN INDIVIDUAL--
(A) EMPLOYED IN AN AGENCY; OR
(B) WHOSE EMPLOYMENT . . . HAS CEASED BECAUSE OF ANY UNFAIR LABOR
PRACTICE . . .; BUT DOES
NOT INCLUDE--
(I) AN ALIEN OR NONCITIZEN OF THE UNITED STATES WHO OCCUPIES A
POSITION OUTSIDE OF THE
UNITED STATES;
(II) A MEMBER OF THE UNIFORMED SERVICES;
(III) A SUPERVISOR OR A MANAGEMENT OFFICIAL;
(IV) AN OFFICER OR EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED
STATES . . .; OR
(V) ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF (5 U.S.C.
7311(.)
UNDER THESE PROVISIONS, "GRIEVANCE" IS BROADLY DEFINED AS REGARDS THE
POTENTIAL SUBJECT MATTER OF A COMPLAINT (E.G., "ANY MATTER RELATING TO
THE EMPLOYMENT OF THE EMPLOYEE" AND "ANY CLAIMED VIOLATION,
MISINTERPRETATION, OR MISAPPLICATION OF ANY LAW, RULE, OR REGULATION
AFFECTING CONDITIONS OF EMPLOYMENT") AS WELL AS IN CONNECTION WITH WHO
MAY RAISE SUCH A COMPLAINT (E.G., "ANY EMPLOYEE, LABOR ORGANIZATION, OR
AGENCY". "EMPLOYEE" IS DEFINED TO INCLUDE ANY INDIVIDUAL "EMPLOYED IN
AN AGENCY" UNLESS THE INDIVIDUAL IN QUESTION IS COVERED BY ONE OF THE
ENUMERATED EXCEPTIONS IN SECTION 7103(A)(2)(I)-(V). SINCE CONGRESS DID
PROVIDE A VARIETY OF SPECIFIC EXCLUSIONS FROM THE DEFINITION OF
"EMPLOYEE" IN THESE PROVISIONS, BUT DID NOT EXCLUDE INDIVIDUALS BASED ON
PROBATIONARY STATUS, THE AUTHORITY HAS CONCLUDED IN THE CONTEXT OF THE
DEFINITION OF "GRIEVANCE" IN SECTION 7103(A)(9), PROBATIONERS ARE
"EMPLOYEES" UNDER THE STATUTE AND THEIR COMPLAINTS FALL WITHIN THE BROAD
DEFINITION OF THE TERM "GRIEVANCE." /45/
TURNING TO SECTION 7121, THE EXCLUSIONS THEREIN (SECTION 7121(C))
RELATE TO TYPES OF COMPLAINTS OR SUBJECT MATTER ISSUES. NONE, HOWEVER,
EVIDENCES CONGRESSIONAL INTENT TO DISTINGUISH AMONG "EMPLOYEES" AS THE
TERM IS DEFINED IN SECTION 7103(A)(9). MOREOVER, SECTION 7121(C)(3)
EXCLUDES FROM THE PERMISSIBLE SCOPE OF COVERAGE BY NEGOTIATED GRIEVANCE
PROCEDURES "A SUSPENSION OR REMOVAL UNDER (5 U.S.C. 7532," WHICH
AUTHORIZES AN AGENCY HEAD TO SUMMARILY SUSPEND OR REMOVE AN "EMPLOYEE"
FOR NATIONAL SECURITY REASONS. THUS, WITH REGARD TO THE TYPE OF
GRIEVANCES INVOLVED UNDER THE DISPUTED PROPOSAL, I.E., REMOVALS OF
EMPLOYEES, SECTION 7121 INCLUDES A SPECIFIC EXCLUSION ADDRESSED TO
SUSPENSIONS OR REMOVALS IN A CERTAIN SITUATION. IN THE ABSENCE OF A
SPECIFIC EXCLUSION IN SECTION 7121(C) WITH RESPECT TO PROBATIONARY
PERIODS OR PROBATIONARY EMPLOYEES, THE AUTHORITY CONCLUDES THAT SUCH AN
EXCLUSION WAS NOT INTENDED.
NEVERTHELESS, THE AGENCY AND THE OPM ARGUE THAT BY EXCLUDING
GRIEVANCES OVER "ANY EXAMINATION . . . OR APPOINTMENT" FROM THE SCOPE OF
NEGOTIATED PROCEDURES, SECTION 7121(C)(4) EXCLUDES GRIEVANCES OVER THE
TERMINATION OF PROBATIONERS. AS TO "EXAMINATION," THEY REFER TO CHAP.
315, SUBCHAPTER. 8-1A, OF THE FEDERAL PERSONNEL MANUAL WHICH DESCRIBES
THE PROBATIONARY PERIOD AS "A FINAL AND HIGHLY SIGNIFICANT STEP IN THE
EXAMINING PROCESS." THEY ARGUE THAT SINCE THIS DESCRIPTION PREDATED
CONGRESS' ENACTMENT OF THE STATUTE, THE TERM "EXAMINATION" IN THE
STATUTE CARRIES A TRADITIONAL MEANING ENCOMPASSING THE PROBATIONARY
PERIOD.
IN NATIONAL COUNCIL, SUPRA, THE AUTHORITY CONCLUDED THAT NOTHING IN
THE STATUTE OR THE LEGISLATIVE HISTORY SUPPORTS A FINDING THAT THE TERMS
"EXAMINATION" AND "EXAMINING PROCESS" ARE SYNONYMOUS. FURTHER, THE
AUTHORITY NOTED THAT IT WAS NOT AWARE OF ANY OTHER PROVISION OF LAW IN
WHICH CONGRESS USED THESE TERMS EQUIVALENTLY. /46/ IN THIS REGARD, A
REVIEW OF RELEVANT LAWS AND REGULATIONS INDICATES THAT THE TERM
"EXAMINATION" GENERALLY REFERS TO AN EVENT BY WHICH AN APPLICANT'S
QUALIFICATION FOR EMPLOYMENT IS DETERMINED BEFORE THE APPLICANT IS
"CERTIFIED" TO AN AGENCY OR A SELECTING OFFICIAL AS A CANDIDATE FOR AN
"APPOINTMENT." /47/
AS REGARDS THE TERM "APPOINTMENT" IN SECTION 7121, THE AGENCY AND THE
OPM ARGUE THAT THIS TERM ADVERTS TO THE CHARACTERIZATION OF THE
PROBATIONARY PERIOD IN 5 U.S.C. 3321 AS SERVICE "BEFORE AN APPOINTMENT
BECOMES FINAL." THEY CONCLUDE THAT CONGRESS INTENDED THE TERM
"APPOINTMENT" IN SUBSECTION 7121(C)(4) TO PRECLUDE GRIEVANCES OVER
SEPARATION OF PROBATIONERS FROM COVERAGE BY NEGOTIATED GRIEVANCE
PROCEDURES. AS EXPLAINED IN NATIONAL COUNCIL, SUPRA, AT 6, THIS
INTERPRETATION DOES NOT COMPORT WITH THE MEANING GIVEN THE TERM
"APPOINTMENT" IN CHAPTER 33, SUBCHAPTER I OF TITLE 5 AND IN TITLE 5 AS A
WHOLE, AND PARTICULARLY THE MEANING IN 5 U.S.C. 3321, THAT AN
"APPOINTMENT" INITIATES AN INDIVIDUAL'S EMPLOYMENT WITH AN AGENCY;
I.E., IT IS A CONDITION PRECEDENT TO A PROBATIONARY PERIOD. /48/
ACCORDINGLY, THE CONTENTIONS OF THE AGENCY AND THE OPM IN THIS REGARD
MUST ALSO BE REJECTED.
THE AGENCY AND OPM, NOTING THAT CONGRESS EXPRESSLY DENIED STATUTORY
APPELLATE RIGHTS TO PROBATIONERS, FURTHER ARGUE THAT SECTION 7121(C),
THEREFORE, SHOULD BE READ TO SIMILARLY DENY PROBATIONERS THE RIGHT TO
GRIEVE UNDER NEGOTIATED PROCEDURES. AS WAS NOTED IN NATIONAL COUNCIL,
CONGRESS HAS EXPLICITLY DENIED PROBATIONERS THE RIGHT TO APPEAL REMOVALS
OR REDUCTIONS IN GRADE BASED ON UNACCEPTABLE PERFORMANCE AND ADVERSE
ACTIONS TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB). /49/ THE
AUTHORITY, IN NATIONAL COUNCIL, PARTICULARLY TOOK NOTE OF THESE
STATUTORY PROVISIONS TO CONCLUDE THAT WHERE CONGRESS SPECIFICALLY
INTENDED TO IDENTIFY AND DENY PROBATIONERS CERTAIN RIGHTS ACCORDED TO
OTHER EMPLOYEES IN THE CSRA, IT EXPRESSED ITS INTENT CLEARLY AND
UNMISTAKABLY. THE AUTHORITY FOUND NO SUCH INTENT WAS INDICATED IN
SECTION 7121. IT FOUND NO BASIS FOR INFERRING SUCH CONGRESSIONAL INTENT
IN SECTION 7121(C)(4) IN LIGHT OF THE LANGUAGE USED BY CONGRESS IN THAT
SECTION AS WELL AS THE BROAD DEFINITIONS GIVEN BY CONGRESS TO THE TERMS
"EMPLOYEE" AND "GRIEVANCE" IN THE STATUTE.
IN THIS REGARD, THE CLEAR INTENT TO DENY PROBATIONERS ACCESS TO
STATUTORY APPEALS PROCEDURES CARRIES NO PERSUASIVE INFERENCE OF A
SIMILAR INTENT WITH RESPECT TO NEGOTIATED GRIEVANCE AND ARBITRATION
PROCEDURES UNDER THE STATUTE. THE SCOPE OF STATUTORY APPEALS PROCEDURES
IS NOT COEXTENSIVE WITH THE STATUTE'S BROAD SCOPE GRIEVANCE PROCEDURES.
/50/
FURTHER, THE AGENCY REFERS TO VARIOUS STATEMENTS IN THE LEGISLATIVE
HISTORY, OF THE CSRA TO THE EFFECT THAT THE PURPOSE OF THE ACT WAS TO
MAKE IT EASIER TO DISCHARGE INCOMPETENT EMPLOYEES. IT CONCLUDES THAT
THE UNION'S PROPOSAL IS INCONSISTENT WITH SUCH PURPOSE. THE CSRA WAS,
OF COURSE, ENACTED IN PART TO PROVIDE INCREASED MANAGEMENT AUTHORITY,
AMONG OTHER THINGS, TO REMOVE EMPLOYEES. /51/ AT THE SAME TIME,
HOWEVER, CONGRESS PROVIDED ADDITIONAL PROCEDURAL PROTECTIONS IN THE
STATUTE FOR EMPLOYEES TO BALANCE INCREASED MANAGEMENT PREROGATIVES,
INCLUDING THE EXPANDED GRIEVANCE AND ARBITRATION PROVISIONS OF SECTION
7121 AS WELL AS THE PROVISION IN SECTION 7106(B)(2) PERMITTING AGENCIES
AND UNIONS TO NEGOTIATE FULLY ON PROCEDURES REGARDING THE EXERCISE OF
MANAGEMENT RIGHTS. /52/
IN THIS REGARD, CONGRESSMAN UDALL STATED THAT UNDER HIS SUBSTITUTE
BILL, WHICH WAS ULTIMATELY ENACTED IN LARGE PART INTO LAW AS THE
STATUTE: /53/
(M)ANAGEMENT HAS THE RESERVED RIGHT TO MAKE THE FINAL DECISION TO
"REMOVE" AN EMPLOYEE, BUT
THAT DECISION MUST BE MADE IN ACCORDANCE WITH APPLICABLE LAWS AND
PROCEDURES, AND THE
PROVISIONS OF ANY APPLICABLE COLLECTIVE BARGAINING AGREEMENT. THE
RESERVED MANAGEMENT RIGHT
TO "REMOVE" WOULD IN NO WAY AFFECT THE EMPLOYEE'S RIGHT TO APPEAL THE
DECISION THROUGH
STATUTORY PROCEDURES OR, IF APPLICABLE, THROUGH THE PROCEDURES SET
FORTH IN A COLLECTIVE
BARGAINING AGREEMENT.
THUS, CONTRARY TO THE AGENCY'S ARGUMENT, OUR DECISION HEREIN IS
CONSISTENT WITH THE BALANCED PURPOSES OF CONGRESS IN ENACTING THE CSRA,
RELEVANTLY, TO "(A)LLOW CIVIL SERVANTS TO BE ABLE TO BE HIRED AND FIRED
MORE EASILY, BUT FOR THE RIGHT REASONS." /54/
FINALLY, IN CONNECTION WITH THEIR ARGUMENTS CONCERNING THE INTENDED
APPLICATION OF SECTION 7121(C)(4), THE AGENCY AND OPM HAVE ARGUED THAT
THE PROPOSAL CANNOT BE WITHIN THE DUTY TO BARGAIN BECAUSE IT WOULD IN
EFFECT ABOLISH THE PROBATIONARY PERIOD ESTABLISHED UNDER LAW AND
REGULATION BY PROVIDING PROBATIONERS WITH THE SAME PROCEDURAL PROTECTION
AGAINST DISMISSAL THROUGH THE ARBITRAL PROCESS AS TENURED EMPLOYEES HAVE
UNDER LAW. APART FROM OTHER CONSIDERATIONS, THE AGENCY AND OPM HAVE
MISINTERPRETED THE UNION'S PROPOSAL IN THIS REGARD. ON ITS FACE, THE
PROPOSAL PROVIDES THAT PROBATIONARY EMPLOYEES SHALL BE PROTECTED ONLY
AGAINST AGENCY ACTION WHICH IS UNREASONABLE, ARBITRARY OR CAPRICIOUS.
THE UNION EXPLAINS THAT UNDER THIS PROPOSAL, "THE BURDEN OF PROOF WOULD
BE ON THE GRIEVANT TO SHOW THAT THE AGENCY'S ACTION WAS 'UNREASONABLE,
ARBITRARY OR CAPRICIOUS," AS OPPOSED TO THE CASE WHERE THE
NON-PROBATIONER GRIEVES A SEPARATION WHERE, OF COURSE, THE AGENCY MUST
BEAR THE BURDEN OF PROOF . . . ." THE UNION FURTHER STATES THAT THE
STANDARD STATED IN THE PROPOSAL IS NOT INTENDED TO EQUATE TO THE "MUCH
STRONGER" STANDARDS FOR NON-PROBATIONERS OF "SUBSTANTIAL EVIDENCE" OR
"PREPONDERANCE OF EVIDENCE."
THE UNION'S STATEMENT REFLECTS THE PROVISIONS OF 5 U.S.C. 7701
CONCERNING STANDARDS OF PROOF FOR MSPB REVIEW OF AGENCY ACTIONS AND THE
STATEMENT OF THE CONFERENCE COMMITTEE CONCERNING BURDENS OF PROOF
UNDER
STATUTORY APPEALS PROCEDURES. /55/ UNDER SECTION 7121(E)(2) OF THE
STATUTE, THE SAME STANDARDS AND BURDENS OF PROOF APPLY TO MATTERS
BROUGHT TO ARBITRATION WHICH COULD HAVE BEEN RAISED UNDER 5 U.S.C. 7701
BEFORE THE MSPB. THEREFORE, CONTRARY TO THE AGENCY'S AND OPM'S
ARGUMENTS, THE UNION'S PROPOSAL WOULD NOT PROVIDE PROBATIONARY EMPLOYEES
WITH THE SAME PROCEDURAL PROTECTIONS AGAINST DISMISSAL AS ARE PROVIDED
NON-PROBATIONERS UNDER THE CSRA. THUS, UNDER THE FACTS OF THIS CASE,
THE CONTENTION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE
IT WOULD ABOLISH THE PROBATIONARY PERIOD CANNOT BE SUSTAINED.
IN CONCLUSION, FOR THE REASONS SET FORTH ABOVE AND CONSISTENT WITH
OUR DECISION IN NATIONAL COUNCIL THAT SECTION 7121(C)(4) OF THE STATUTE
DOES NOT MANDATE THE EXCLUSION OF GRIEVANCES OVER THE SEPARATION OF
PROBATIONERS FROM THE BROAD SCOPE GRIEVANCE PROCEDURE, PROPOSAL 11 IS
WITHIN THE DUTY TO BARGAIN. WE NOTE IN THIS REGARD, HOWEVER, THAT AS IS
TRUE WITH OTHER PROPOSALS FOUND NEGOTIABLE, THE PARTIES' OBLIGATION TO
NEGOTIATE IN GOOD FAITH DOES NOT COMPEL EITHER PARTY TO AGREE TO THE
PROPOSAL. 5 U.S.C. 7103(A)(12). IF THEY SHOULD NEGOTIATE IN GOOD FAITH
AND REACH IMPASSE ON THE MATTER, EITHER PARTY MAY REQUEST THE ASSISTANCE
OF THE FEDERAL SERVICE IMPASSES PANEL, AS PROVIDED UNDER SECTION 7119 OF
THE STATUTE. IF THIS OCCURS, THE PANEL, WHICH IS COMPOSED OF MEMBERS
"WHO ARE FAMILIAR WITH GOVERNMENT OPERATIONS AND (WHO ARE) KNOWLEDGEABLE
IN LABOR-MANAGEMENT RELATIONS," /56/ MAY ULTIMATELY "TAKE WHATEVER
ACTION IS NECESSARY AND NOT INCONSISTENT WITH (THE STATUTE) TO RESOLVE
THE IMPASSE." /57/ IN THIS REGARD, THE PARTIES IN THE INSTANT CASE HAVE
SUCCESSFULLY USED THE ASSISTANCE OF THE PANEL IN A PREVIOUS IMPASSE
SITUATION. SEE DEPARTMENT OF JUSTICE, U.S. IMMIGRATION AND
NATURALIZATION SERVICE, WASHINGTON, D.C. AND NATIONAL INS COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 79 FSIP 27 (JULY
19, 1979), FSIP RELEASE NO. 125.
UNION PROPOSAL 12
THE UNION'S REQUEST WITHOUT OBJECTION BY THE AGENCY, TO BE ALLOWED TO
WITHDRAW PROPOSAL 12 FROM ITS APPEAL, IS GRANTED.
UNION PROPOSAL 13
EXCEPT FOR TRAINING COURSES, TRAVEL AWAY FROM THE NORMAL DUTY STATION
WILL NOT EXCEED 35
CALENDAR DAYS UNLESS THE EMPLOYEE VOLUNTEERS FOR A LONGER PERIOD.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE THE AGENCY'S DUTY
TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT WITH
MANAGEMENT'S RIGHTS TO ASSIGN OR DIRECT EMPLOYEES PURSUANT TO SECTION
7106(A)(2)(A); TO ASSIGN WORK TO EMPLOYEES PURSUANT TO SECTION
7106(A)(2)(B); OR TO DETERMINE THE NUMBERS, TYPES AND GRADES OF
EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL SUBDIVISION, WORK PROJECT, OR
TOUR OF DUTY PURSUANT TO SECTION 7106(B)(1) OF THE STATUTE.
OPINION
CONCLUSION AND ORDER: THE PROPOSAL CONFLICTS WITH THE AGENCY'S RIGHT
TO ASSIGN WORK TO ITS EMPLOYEES UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE. /58/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
THAT THE PETITION FOR REVIEW OF THIS DISPUTED PROPOSAL BE, AND IT HEREBY
IS, DISMISSED. /59/
REASONS: IN NATIONAL TREASURY EMPLOYEES UNION AND DEPARTMENT OF THE
TREASURY, BUREAU OF THE PUBLIC DEBT, 3 FLRA NO. 119 (1980) AT 7, APPEAL
DOCKETED, NO. 80-1895 (D.C. CIR. AUG. 4, 1980), THE EXTENT OF AN
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106 OF THE STATUTE WAS
EXPLAINED, IN PART, AS FOLLOWS:
THE RIGHT TO ASSIGN WORK TO EMPLOYEES OR POSITIONS UNDER SECTION
7106(A), SUBJECT TO THE
PROVISIONS OF SECTION 7106(B), IS COMPOSED OF TWO DISCRETIONARY
ELEMENTS: (1) THE PARTICULAR
DUTIES AND WORK TO BE ASSIGNED, AND (2) THE PARTICULAR EMPLOYEES TO
WHOM OR POSITIONS TO WHICH
IT WILL BE ASSIGNED. FURTHERMORE, MANAGEMENT DISCRETION IN THIS
REGARD INCLUDES THE RIGHT TO
ASSIGN GENERAL CONTINUING DUTIES, TO MAKE SPECIFIC PERIODIC WORK
ASSIGNMENTS TO EMPLOYEES, TO
DETERMINE WHEN SUCH ASSIGNMENTS WILL OCCUR AND TO DETERMINE WHEN THE
WORK WHICH HAS BEEN
ASSIGNED WILL BE PERFORMED. (CITATIONS OMITTED.)
THUS, THE RIGHT TO ASSIGN WORK INCLUDES DISCRETION TO DETERMINE THE
PARTICULAR EMPLOYEE TO WHOM THE WORK WILL BE ASSIGNED AND TO DETERMINE
WHEN THE WORK WHICH HAS BEEN ASSIGNED WILL BE PERFORMED. THE INSTANT
PROPOSAL WOULD PREVENT THE AGENCY FROM EXERCISING ITS RIGHTS TO ASSIGN
WORK AS JUST DESCRIBED. BY ITS TERMS, THE PROPOSAL WOULD REQUIRE THE
AGENCY TO DISCONTINUE OR REASSIGN THE WORK INVOLVED AFTER 35 DAYS,
REGARDLESS OF WHETHER IT HAD BEEN COMPLETED, UNLESS THE EMPLOYEE TO WHOM
IT HAD BEEN ASSIGNED VOLUNTEERED TO CONTINUE WORKING AWAY FROM THE
NORMAL DUTY STATION FOR A LONGER PERIOD OF TIME. ACCORDINGLY, THE
PROPOSAL WOULD PREVENT THE AGENCY FROM EXERCISING ITS DISCRETION TO
ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE, AND IS NOT
WITHIN THE AGENCY'S DUTY TO BARGAIN. /60/
UNION PROPOSAL 14
THE PARTIES AGREE THAT, EXCEPT WHERE THE SERVICE WOULD BE
SIGNIFICANTLY IMPEDED IN CARRYING
OUT ITS OVERALL LAW ENFORCEMENT MISSION, DUTIES NOT SPECIFIED IN AN
EMPLOYEE'S POSITION
DESCRIPTION, OR REASONABLY RELATED THERETO, WILL BE AVOIDED UNLESS
TEMPORARILY REQUIRED BY THE
NEEDS OF THE SERVICE. (EMPHASIS IN ORIGINAL.)
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS ARE WHETHER THE PROPOSAL IS OUTSIDE OF THE AGENCY'S
DUTY TO BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD CONFLICT
WITH THE AGENCY'S RIGHT TO DETERMINE ITS ORGANIZATION UNDER SECTION
7106(A)(1) OF THE STATUTE; /61/ OR TO DETERMINE THE NUMBERS, TYPES, AND
GRADES OF EMPLOYEES OR POSITIONS TO BE ASSIGNED TO ANY ORGANIZATIONAL
SUBDIVISION, WORK PROJECT, OR TOUR OF DUTY UNDER SECTION 7106(B)(1) OF
THE STATUTE. /62/
OPINION
CONCLUSION AND ORDER: THE PROPOSAL DOES NOT CONFLICT WITH SECTION
7106(A)(1) OR SECTION 7106(B)(1) OF THE STATUTE, AND IS WITHIN THE DUTY
TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING THIS PROPOSAL. /63/
REASONS: THE AGENCY INTERPRETS THE PROPOSAL AS PREVENTING THE AGENCY
FROM VARYING THE CONTENT OF PARTICULAR JOBS OR VARYING THE DUTIES IT MAY
ASSIGN TO INDIVIDUAL EMPLOYEES. UNDER THE EXPRESS LANGUAGE OF THE
PROPOSAL AND THE UNION'S EXPLANATION OF ITS INTENT, THE AUTHORITY
CONCLUDES THAT THE AGENCY HAS MISINTERPRETED THE PROPOSAL. THIS
PROPOSAL WOULD REQUIRE THE AGENCY TO AVOID ASSIGNING DUTIES TO AN
EMPLOYEE WHICH ARE NOT SPECIFIED IN OR REASONABLY RELATED TO THE
EMPLOYEE'S POSITION DESCRIPTION "UNLESS TEMPORARILY REQUIRED BY THE
NEEDS OF THE SERVICE." THE LANGUAGE AND INTENT OF THE PROPOSAL ARE
CONCERNED WITH INSURING THAT POSITION DESCRIPTIONS ARE ACCURATE. ITS
EFFECT WOULD BE TO PREVENT THE AGENCY FROM REGULARLY OR PERMANENTLY
REQUIRING AN EMPLOYEE TO PERFORM DUTIES NOT SPELLED OUT IN THE POSITION
DESCRIPTION OR REASONABLY RELATED TO DUTIES IN THE DESCRIPTION. IN THIS
REGARD, THE PROPOSAL BEARS NO MATERIAL DIFFERENCE FROM PROPOSAL II IN
DIX-MCGUIRE EXCHANGE, /64/ WHICH WAS HELD TO BE WITHIN THE DUTY TO
BARGAIN. AS THE AUTHORITY STATED IN THAT DECISION: /65/
NOTHING IN THE LANGUAGE OF THE PROPOSAL OR THE RECORD INDICATES THAT
IT IS INTENDED TO
SHIELD THE EMPLOYEE FROM BEING ASSIGNED ADDITIONAL "UNRELATED"
DUTIES, I.E., DUTIES WHICH ARE
NOT WITHIN THOSE DESCRIBED IN HIS OR HER EXISTING POSITION
DESCRIPTION AND WHICH ARE NOT
RELATED TO THOSE WHICH ARE SO DESCRIBED. RATHER, AS A CONSEQUENCE OF
THIS PROPOSAL, IF THE
AGENCY DECIDED TO ADD UNRELATED DUTIES, TO BE PERFORMED REGULARLY, TO
A POSITION, IT WOULD
NEED TO CHANGE THE POSITION DESCRIPTION IN ORDER TO DO SO. THE
PROPOSAL WOULD IN NO WAY
PRECLUDE THE AGENCY FROM INCLUDING ADDITIONAL, THOUGH UNRELATED,
DUTIES IN THE POSITION
DESCRIPTION. THUS, IN THE CIRCUMSTANCES OF THIS CASE, THE RIGHT OF
THE AGENCY TO ASSIGN WORK
REMAINS UNAFFECTED, WHILE THE EMPLOYEE IS ASSURED THAT HIS OR HER
POSITION DESCRIPTION
ACCURATELY REFLECTS THE WORK ASSIGNED TO THE POSITION.
ACCORDINGLY, THE INSTANT PROPOSAL IS WITHIN THE AGENCY'S DUTY TO
BARGAIN.
UNION PROPOSAL 15
IMMIGRATION INSPECTORS, INVESTIGATORS AND DEPORTATION OFFICER
TRAINEES SHALL WORK UNDER THE
SUPERVISION AND GUIDANCE OF A JOURNEYMAN OR SUPERVISORY OFFICER.
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS PRESENTED ARE: WHETHER THE APPEAL AS TO THIS PROPOSAL
SHOULD BE DISMISSED AS UNTIMELY FILED; AND, IF NOT, WHETHER THE
PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT WOULD CONFLICT WITH
THE AGENCY'S RIGHTS TO DETERMINE ITS ORGANIZATION UNDER SECTION
7106(A)(1) OF THE STATUTE, TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE, OR TO DETERMINE THE NUMBERS, TYPES, AND GRADES OF EMPLOYEES
OR POSITIONS TO BE ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY UNDER
SECTION 7106(B)(1) OF THE STATUTE, /66/ ALL AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE APPEAL AS TO THIS PROPOSAL WAS TIMELY AND
IS PROPERLY BEFORE THE AUTHORITY FOR DECISION. THE PROPOSAL, HOWEVER,
WOULD CONFLICT WITH THE AGENCY'S RIGHT TO DETERMINE THE NUMBERS AND
TYPES OF EMPLOYEES TO BE ASSIGNED TO A WORK PROJECT OR TOUR OF DUTY
UNDER SECTION 7106(B)(1) OF THE STATUTE, AND THEREFORE IS NEGOTIABLE
ONLY AT THE ELECTION OF THE AGENCY. THE AGENCY HAS ELECTED NOT TO
NEGOTIATE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED THAT THE
PETITION FOR REVIEW CONCERNING THIS PROPOSAL BE, AND IT HEREBY IS,
DISMISSED.
REASONS: AS TO WHETHER THE PROPOSAL IS PROPERLY BEFORE THE AUTHORITY
FOR DECISION, BASED ON THE RECORD, THE BACKGROUND FOR THIS QUESTION IS
AS FOLLOWS: DURING THE NEGOTIATIONS WHICH GAVE RISE TO THIS APPEAL, THE
LOCAL PARTIES FORWARDED CERTAIN MATTERS, INCLUDING THIS PROPOSAL AND
PROPOSAL 16, INFRA, CONCERNING WHICH THEY HAD NOT YET EXECUTED AN
AGREEMENT, TO THE AGENCY HEAD FOR REVIEW "IN ORDER TO EXPEDITE . . .
IMPLEMENTATION FOLLOWING EXECUTION." /67/ UPON REVIEW, PURPORTEDLY
PURSUANT TO SECTION 7114(C) OF THE STATUTE, THE AGENCY INFORMED THE
LOCAL PARTIES IN WRITING THAT SOME OF THE MATTERS SO FORWARDED,
INCLUDING PROPOSALS 15 AND 16, WERE NOT WITHIN THE DUTY TO BARGAIN.
AT A LATER DATE, THE UNION REQUESTED AGENCY ALLEGATIONS AS TO THE
DUTY TO BARGAIN ON PROPOSALS 15 AND 16 (AS WELL AS ON CERTAIN OTHER
MATTERS WHICH HAD NOT BEEN SUBJECT TO THE EARLIER REVIEW BY THE AGENCY).
THE AGENCY RESPONDED INTER ALIA, THAT, AS PROPOSALS 15 AND 16 WERE NOT
WITHIN THE DUTY TO BARGAIN AND HAD BEEN THE SUBJECT OF AN AGENCY
"NEGOTIABILITY DETERMINATION IN ACCORDANCE WITH 5 U.S.C. 7114" MORE THAN
A MONTH EARLIER, "ANY APPEAL OF THAT DETERMINATION TO THE FLRA IS NOW
UNTIMELY." THE UNION FILED ITS APPEAL WHICH WAS TIMELY IF MEASURED FROM
THE DATE OF THIS AGENCY ALLEGATION. THE AGENCY CONTENTION THAT THE
EARLIER REVIEW SET THE TIME LIMITS RUNNING CANNOT BE SUSTAINED. THE
EARLIER REVIEW WAS NOT CONDUCTED IN ACCORDANCE WITH SECTION 7114(C) OF
THE STATUTE AND DID NOT START THE TIME LIMIT RUNNING FOR THE UNION TO
FILE ITS APPEAL.
SECTION 7114(C) PROVIDES, AS RELEVANT, THAT COLLECTIVE BARGAINING
AGREEMENTS ARE SUBJECT TO APPROVAL BY THE HEAD OF THE AGENCY WHO "SHALL
APPROVE THE AGREEMENT WITHIN 30 DAYS FROM THE DATE THE AGREEMENT IS
EXECUTED." THUS, SECTION 7114(C) CONTEMPLATES THAT APPROVAL OR
DISAPPROVAL AS IN THE INSTANT CASE, WILL OCCUR ONLY AFTER THE AGREEMENT
IN QUESTION HAS BEEN "EXECUTED." HOWEVER, AS PREVIOUSLY QUOTED HEREIN,
THE AGENCY CONCEDES THAT ITS REVIEW AND DISAPPROVAL OCCURRED BEFORE
THERE WAS AN EXECUTED AGREEMENT. ACCORDINGLY, THE AGENCY'S CLAIM THAT
THE APPEAL IS NOT PROPERLY BEFORE THE AUTHORITY AS REGARDS PROPOSALS 15
AND 16 BECAUSE THE UNION FAILED TO TIMELY APPEAL THE AGENCY'S SECTION
7114(C) DISAPPROVAL OF THOSE PROPOSALS IS WITHOUT BASIS AND THE APPEAL
AS TO THOSE MATTERS IS PROPERLY BEFORE THE AUTHORITY FOR DECISION.
AS TO WHETHER THE PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN, THE
PROPOSAL AS EXPLAINED BY THE PARTIES WOULD REQUIRE AGENCY MANAGEMENT TO
ASSIGN A JOURNEYMAN OR A SUPERVISORY OFFICER TO WORK PROJECTS OR TOURS
OF DUTY WITH TRAINEE OFFICERS IN CIRCUMSTANCES WHERE THE AGENCY WOULD
ORDINARILY ASSIGN TRAINEE OFFICERS ALONE. THUS, THE PROPOSAL WOULD
DIRECTLY AFFECT AND BE DETERMINATIVE OF BOTH THE NUMBERS AND THE TYPES
OF EMPLOYEES THAT AGENCY MANAGEMENT WOULD ASSIGN TO WORK PROJECTS OR
TOURS OF DUTY UNDER THE CIRCUMSTANCES COVERED.
UNDER SECTION 7106(B)(1) OF THE STATUTE, SUCH MATTERS ARE NEGOTIABLE
ONLY AT THE ELECTION OF THE AGENCY. /68/ THE UNION CONTENDS THAT THE
AGENCY, THROUGH ITS LOCAL MANAGEMENT OFFICIALS WHO TENTATIVELY AGREED TO
THE PROPOSAL, HAS ELECTED TO NEGOTIATE UNDER SECTION 7106(B)(1). FOR
THE FOLLOWING REASONS, THIS CONTENTION CANNOT BE SUSTAINED.
WITH RESPECT TO SECTION 7106(B)(1) OF THE STATUTE, REPRESENTATIVE
FORD STATED DURING THE HOUSE DEBATES AS FOLLOWS: /69/
I MIGHT SAY THAT NOT ONLY ARE (THE AGENCIES) UNDER NO OBLIGATION TO
BARGAIN (CONCERNING THE
MATTERS ENUMERATED IN SECTION 7106(B)(1)), BUT IN FACT THEY CAN START
BARGAINING AND CHANGE
THEIR MINDS AND DECIDE THEY DO NOT WANT TO TALK ABOUT IT ANY MORE,
AND PULL IT OFF THE
TABLE. IT IS COMPLETELY WITHIN THE CONTROL OF THE AGENCY TO BEGIN
DISCUSSING THE MATTER OR
TERMINATE THE DISCUSSION AT ANY POINT THEY WISH WITHOUT A CONCLUSION
. . . .
IT IS COMPLETELY, IF YOU WILL, AT THE PLEASURE AND THE WILL OF THE
AGENCY. WHERE AN AGENCY
WANTS TO RESOLVE A PARTICULAR PROBLEM WITH AN ORGANIZATION AND COME
TO SOME AGREEMENT, IT CAN
CHOOSE TO DO SO.
SIMILARLY, THE CONFERENCE COMMITTEE, DISCUSSING OTHER MATTERS
ENUMERATED IN SECTION 7106(B)(1), EXPLAINED: /70/
(A)N AGENCY CAN, IN PROVIDING GUIDANCE AND ADVICE TO BARGAINING
REPRESENTATIVES, INSTRUCT
THEM TO APPROACH ANY NEGOTIATIONS INVOLVING METHODS AND MEANS WITH
CAREFUL ATTENTION TO THE
IMPACT ANY RESULTING AGREEMENTS MAY HAVE AND UNDER NO CIRCUMSTANCES
AGREE TO LANGUAGE
IMPACTING ADVERSELY ON THE EFFICIENCY AND EFFECTIVENESS OF AGENCY
OPERATIONS. SUCH GUIDANCE,
AND ANY REQUIREMENT PLACED ON NEGOTIATORS TO CONSULT WITH HIGHER
AUTHORITY BEFORE AGREEING TO
ANY LANGUAGE CONCERNING METHODS AND MEANS WOULD NOT CONFLICT WITH THE
CONFERENCE REPORT NOR
CONSTITUTE EVIDENCE OF AN UNFAIR LABOR PRACTICE.
THUS, THE RELEVANT LEGISLATIVE HISTORY DEMONSTRATES THE CONGRESSIONAL
INTENT THAT AGENCIES WERE TO BE PROVIDED WITH ABSOLUTE DISCRETION IN
CONSULTING WITH THEIR CONSTITUENT ELEMENTS ON NEGOTIATIONS CONCERNING
MATTERS COVERED BY SECTION 7106(B)(1) OF THE STATUTE, PRIOR TO FINAL
AGREEMENT ON SUCH MATTERS. IN THE PRESENT CASE, IT IS PLAIN THAT THE
LOCAL PARTIES HAD NOT EXECUTED AN AGREEMENT ON THE MATTERS IN QUESTION.
THEREFORE, NOTWITHSTANDING THEIR NEGOTIATIONS AND TENTATIVE AGREEMENT,
THE AGENCY WAS ACTING WITHIN ITS RIGHT UNDER THE STATUTE TO ELECT NOT TO
BARGAIN FURTHER ON THE PROPOSAL.
UNION PROPOSAL 16
IF A DETAIL OF MORE THAN 60 DAYS IS MADE TO A HIGHER GRADED POSITION
OR TO A POSITION WITH
KNOWN PROMOTION POTENTIAL, IT MUST BE MADE UNDER COMPETITIVE
PROMOTION PROCEDURES. (EMPHASIS
IN ORIGINAL.)
QUESTIONS BEFORE THE AUTHORITY
THE QUESTIONS PRESENTED ARE: WHETHER THE APPEAL AS TO THIS PROPOSAL
SHOULD BE DISMISSED AS UNTIMELY FILED; AND, IF NOT, WHETHER THE
PROPOSAL IS OUTSIDE OF THE DUTY TO BARGAIN BECAUSE IT WOULD CONFLICT
WITH THE AGENCY'S RIGHT TO ASSIGN EMPLOYEES PURSUANT TO SECTION
7106(A)(2)(A) OF THE STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE APPEAL AS TO THIS PROPOSAL WAS TIMELY AND
IS PROPERLY BEFORE THE AUTHORITY FOR DECISION. FURTHER, THE PROPOSAL
DOES NOT CONFLICT WITH SECTION 7106(A)(2)(A) OF THE STATUTE AND IS
WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS
ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY
THE PARTIES) BARGAIN CONCERNING THIS PROPOSAL. /71/
REASONS: FOR THE REASONS FULLY STATED WITH RESPECT TO PROPOSAL 15,
PROPOSAL 16 IS ALSO PROPERLY BEFORE THE AUTHORITY FOR DECISION.
IN SUPPORT OF ITS CONTENTION THAT THE PROPOSAL WOULD CONFLICT WITH
ITS RIGHT TO ASSIGN EMPLOYEES PURSUANT TO SECTION 7106(A)(2)(A), THE
AGENCY RELIES ON CERTAIN PROVISIONS OF THE FEDERAL PERSONNEL MANUAL
(FPM) WHICH REQUIRE THE USE OF COMPETITIVE PROCEDURES FOR DETAILS OF
THIS TYPE WHICH WOULD LAST FOR 120 DAYS OR MORE. THE AGENCY ARGUES THAT
SINCE THE FPM ONLY REQUIRES THE USE OF COMPETITIVE PROCEDURES FOR
DETAILS OF 120 DAYS OR MORE, THE AGENCY MAY NOT BE OBLIGATED THROUGH
NEGOTIATIONS TO USE SUCH PROCEDURES FOR DETAILS OF SHORTER PERIODS.
/72/ THE FPM REQUIREMENT TO USE COMPETITIVE PROMOTION PROCEDURES FOR
DETAILS OF 120 DAYS OR MORE DOES NOT PROHIBIT AGENCIES FROM USING SUCH
PROCEDURES FOR DETAILS FOR SHORTER PERIODS. ACCORDINGLY, CONTRARY TO
THE AGENCY'S ARGUMENT, THE PROPOSAL WOULD NOT CONFLICT WITH THE CITED
FPM REQUIREMENT.
AS TO THE RIGHT TO ASSIGN EMPLOYEES UNDER SECTION 7106(A)(2)(A) OF
THE STATUTE, /73/ THIS RIGHT ENCOMPASSES THE RIGHT TO DETAIL EMPLOYEES
TO POSITIONS AND THE DISCRETION TO SELECT A PARTICULAR EMPLOYEE FOR A
DETAIL. /74/ HOWEVER, THE DISPUTED PROPOSAL DOES NOT DENY MANAGEMENT
THIS RIGHT. INSTEAD, THE PROPOSAL MERELY PROVIDES THAT, WHERE DETAILS
ARE MADE FOR A PERIOD LONGER THAN 60 DAYS, COMPETITIVE PROCEDURES SHALL
BE APPLIED. THUS, IT WOULD NOT APPLY TO AND WOULD HAVE NO IMPACT ON
MANAGEMENT'S ABILITY TO DETAIL EMPLOYEES FOR PERIODS OF UP TO 60 DAYS.
MOREOVER, AS TO DETAILS FOR PERIODS OF OVER 60 DAYS, THE REQUIREMENT
THAT MANAGEMENT USE COMPETITIVE PROCEDURES DOES NOT VIOLATE ITS RIGHT TO
ASSIGN EMPLOYEES UNDER THE STATUTE BECAUSE IT PRESERVES MANAGEMENT'S
CHARACTERISTICS. /75/ SINCE THE DISPUTED PROPOSAL THERFORE CONCERNS
ONLY THE MAXIMUM PERIOD FOR WHICH THE AGENCY WILL EFFECT DETAILS
NONCOMPETITIVELY, AND SINCE THE PROPOSAL PLAINLY DOES NOT DIRECTLY
INTERFERE WITH THE AGENCY'S RIGHT TO ASSIGN EMPLOYEES TO DETAILS, THE
PROPOSAL IS WITHIN THE AGENCY'S DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., APRIL 6, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
LEON B. APPLEWHAITE, MEMBER, CONCURRING:
ALTHOUGH I AGREE WITH THE RESULTS ATTAINED IN THIS CASE, I FEEL IT
NECESSARY TO ARTICULATE A SPECIFIC CONCERN. INSOFAR AS UNION PROPOSAL
11 RELATES TO THE PROCEDURAL ASPECTS OF THE TERMINATION OF PROBATIONARY
EMPLOYEES, AND THE DISPOSITION OF THE PROPOSAL IS TOTALLY WITHIN THE
CONFINES OF THE AUTHORITY'S DECISION IN NATIONAL COUNCIL, 4 FLRA NO. 51
(1980), I CONCUR WITH MY FELLOW MEMBERS. I AM, HOWEVER, UNABLE TO AGREE
WITH ANY EXPANSION OF THIS REASONING TO INCLUDE THE SUBSTANTIVE
CONSIDERATIONS OF MANAGEMENT'S ACTIONS.
ISSUED, WASHINGTON, D.C., APRIL 6, 1982
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ IN VIEW OF THIS CONCLUSION, IT IS UNNECESSARY TO REACH THE
ADDITIONAL CONTENTIONS OF THE PARTIES AS TO THE NEGOTIABILITY OF THE
PROPOSAL UNDER SECTION 7106 OF THE STATUTE.
/2/ SEE SECTIONS 7103(A)(12), 7103(A)(14) AND 7114 OF THE STATUTE.
/3/ INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, CLC, LOCAL
F-116 AND DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR FORCE BASE,
CALIFORNIA, 7 FLRA 123, 124-25 (1981); AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3403 AND NATIONAL SCIENCE
FOUNDATION, WASHINGTON, D.C., 6 FLRA 669, 671-72 (1981).
/4/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/5/ SECTION 7106(B)(1) PROVIDES IN PERTINENT PART:
(B)NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE NUMBERS, TYPES, AND GRADES
OF EMPLOYEES OR POSITIONS ASSIGNED TO ANY ORGANIZATIONAL SUBDIVISION,
WORK PROJECT, OR TOUR OF DUTY, OR ON THE TECHNOLOGY, METHODS, AND MEANS
OF PERFORMING WORK(.)
/6/ SECTION 7106(B)(3) PROVIDES:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
. . . .
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT
OFFICIALS.
/7/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/8/ SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 254 (1979) AND THE
DISCUSSION HEREIN IN CONNECTION WITH UNION PROPOSAL 2, SUPRA.
/9/ SECTION 7106(A)(1) PROVIDES:
SEC 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE MISSION, BUDGET, ORGANIZATION, NUMBER OF
EMPLOYEES, AND INTERNAL
SECURITY PRACTICES OF THE AGENCY(.)
/10/ WEBSTER'S THIRD NEW INTERNATIONAL DIRECTORY 1590 (UNABRIDGED
1976); SEE CONGRESSIONAL RESEARCH EMPLOYEES ASSOCIATION AND THE LIBRARY
OF CONGRESS, 3 FLRA NO. 117 (1980), WHERE THE AUTHORITY FOUND THAT THE
PLAIN LANGUAGE OF A UNION PROPOSAL ("(F)OUR SECTIONS FOR ATTORNEYS WILL
BE CREATED IN PLACE OF THE PRESENT TWO)" WOULD REQUIRE THE AGENCY TO
ADOPT A CERTAIN ORGANIZATION STRUCTURE.
/11/ THE AGENCY CITES FEDERAL COURT DECISIONS, INCLUDING KELLY V.
JOHNSON, 425 U.S. 238 (1976) IN SUPPORT OF ITS POSITION. THESE
DECISIONS ARE INAPPOSITE TO THE PRESENT CASE. EACH INVOLVED A CLAIM
THAT AN AGENCY'S GROOMING STANDARDS HAD THE EFFECT OF DEPRIVING AN
EMPLOYEE OF HIS OR HER RIGHTS UNDER THE CONSTITUTION. AS EXPLAINED BY
THE SUPREME COURT, THIS TYPE OF ISSUE IS TO BE RESOLVED IN ACCORDANCE
WITH A DETERMINATION AS TO WHETHER THE AGENCY'S DECISION TO REQUIRE
GROOMING STANDARDS IS IRRATIONAL. KELLY V. JOHNSON, 425 U.S. 238, 248
(1976). WHAT IS AT ISSUE HERE IS WHETHER THE UNION'S PROPOSAL WOULD
DIRECTLY INFRINGE UPON THE AGENCY'S RIGHT TO DETERMINE ITS MEANS OF
PERFORMING WORK UNDER SECTION 7106 SO AS TO BE OUTSIDE THE DUTY TO
BARGAIN.
/12/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/13/ SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE, 3 FLRA NO. 112 (1980).
/14/ SECTION 7114(A) PROVIDES, IN PERTINENT PART:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITIONS OF EMPLOYMENT; OR
(B) ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF
THE AGENCY IN CONNECTION WITH AN INVESTIGATION IF--
(I) THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT
IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE; AND
(II) THE EMPLOYEE REQUESTS REPRESENTATION.
(3) EACH AGENCY SHALL ANNUALLY INFORM ITS EMPLOYEES OF THEIR RIGHTS
UNDER PARAGRAPH (2)(B) OF THIS SUBSECTION.
/15/ INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL
1186 AND NAVY PUBLIC WORKS CENTER, PEARL HARBOR, HONOLULU, HAWAII, 4
FLRA NO. 32 (1980) AT 6, APPEAL DOCKETED, NO. 80-7640 (9TH CIR. NOV. 14,
1980).
/16/ SECTION 7106(A)(2)(A) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY--
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES(.)
/17/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA 152 (1=79), ENFORCED SUB NOM., DEPARTMENT OF DEFENSE V.
FEDERAL LABOR RELATIONS AUTHORITY, 659 F. 2D 1140 (D.C. CIR. 1981),
CERT. DENIED SUB NOM., AFGE V. FLRA, 50 U.S.L.W. 3669 (FEB. 23, 1982).
/18/ NOTE 5, SUPRA.
/19/ NOTE 16, SUPRA.
/20/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/21/ SEE NOTE 17, SUPRA.
/22/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/23/ NOTE 16, SUPRA.
/24/ SECTION 7106(A)(2)(B) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS ARE CONDUCTED(.)
/25/ NOTE 5, SUPRA.
/26/ SEE NOTE 17, SUPRA.
/27/ IN VIEW OF THIS DECISION, THE AUTHORITY FINDS IT UNNECESSARY TO
ADDRESS THE REMAINING CONTENTIONS OF THE AGENCY AS TO THE NEGOTIABILITY
OF THE PROPOSAL.
/28/ THE PHRASE "CONFLICT-OF-INTEREST SITUATIONS" AS USED IN THE
PROPOSAL IS NOT DEFINED IN THE RECORD. THEREFORE, IT IS DETERMINED THAT
THE PHRASE REFERS TO "CONFLICTS-OF-INTEREST" AS GENERALLY DEFINED IN
AGENCY AND GOVERNMENT-WIDE REGULATIONS; E.G., SITUATIONS IN WHICH AN
EMPLOYEE HAS AN INTEREST CONNECTED WITH ANOTHER PERSON, AN INSTITUTION,
OR A TRANSACTION WHICH WOULD INTERFERE WITH THE PROPER PERFORMANCE OF
THE EMPLOYEE'S DUTIES AS A REPRESENTATIVE OF THE AGENCY. SEE 28 CFR
45.735-4; 5 CFR PART 735.
/29/ NOTE 9, SUPRA.
/30/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15
AND DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, NORTH ATLANTIC
REGION, 2 FLRA 874 (1980), AND NATIONAL LABOR RELATIONS BOARD UNION AND
GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD, 5 FLRA NO. 95
(1981).
/31/ NOTE 9, SUPRA.
/32/ NOTE 5, SUPRA.
/33/ IN VIEW OF THIS DECISION, THE AUTHORITY FINDS IT UNNECESSARY TO
ADDRESS THE REMAINING CONTENTIONS OF THE AGENCY AS TO THE NEGOTIABILITY
OF THE PROPOSAL.
/34/ IN THIS REGARD, SECTION 7114(B) OF THE STATUTE PROVIDES IN
RELEVANT PART:
(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH UNDER SUBSECTION (A) OF THIS SECTION SHALL
INCLUDE THE OBLIGATION--
. . . .
(4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
REPRESENTATIVE INVOLVED, OR ITS
AUTHORIZED REPRESENTATIVE, UPON REQUEST AND, TO THE EXTENT NOT
PROHIBITED BY LAW, DATA--
(A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
OF BUSINESS;
(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION,
UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE OF
COLLECTIVE BARGAINING; AND
(C) WHICH DOES NOT CONSTITUTE GUIDANCE, ADVICE, COUNSEL, OR TRAINING
PROVIDED FOR
MANAGEMENT OFFICIALS OR SUPERVISORS, RELATING TO COLLECTIVE
BARGAINING(.)
/35/ NOTE 16, SUPRA.
/36/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/37/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/38/ TEST PROVIDED WITH OTHER PROVISIONS OF SECTION 7121, INFRA.
/39/ THE AGENCY AND THE OPM ADDITIONALLY REFER TO DECISIONS OF STATE
COURTS AND THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) TO PROVIDE SUPPORT
FOR THEIR POSITION. APART FROM OTHER CONSIDERATIONS, HOWEVER, THERE IS
NO INDICATION IN THE STATUTE OR ITS LEGISLATIVE HISTORY THAT CONGRESS
INTENDED THE AUTHORITY TO FOLLOW STATE STATUTES AND POLICIES IN
RESOLVING NEGOTIABILITY DISPUTES UNDER THE FEDERAL STATUTE, AND CONGRESS
CLEARLY DID NOT INTEND THAT THE AUTHORITY SHOULD DEFER TO FLRC DECISIONS
IN THIS REGARD. SEE, E.G., 124 CONG. REC. H 9638 (DAILY ED. SEPT. 13,
1978) (REMARKS OF REP. CLAY); AND 124 CONG. REC. H 9651 (DAILY ED.
SEPT. 13, 1978) (REMARKS OF REP. FORD), CITED IN DEPARTMENT OF DEFENSE
V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140, 1162-63 (D.C. CIR.
1981).
/40/ NATIONAL COUNCIL WAS BEFORE THE AUTHORITY ON AN EXCEPTION TO AN
ARBITRATOR'S AWARD, FILED BY A UNION UNDER SECTION 7122(A) OF THE
STATUTE. THE ARBITRATOR'S AWARD INVOLVED A GRIEVANCE CONCERNING THE
TERMINATION OF A PROBATIONARY EMPLOYEE. THE ARBITRATOR STATED THE
ISSUES PRESENTED TO HIM AS FOLLOWS:
IS THE FOLLOWING (THE GRIEVANCE CONCERNING THE TERMINATION OF THE
PROBATIONARY EMPLOYEE)
GRIEVABLE/ARBITRABLE UNDER THE TERMS OF THE AGREEMENT AS THOSE TERMS
ARE AFFECTED BY
CONTROLLING LAW?
IF SO, DID MANAGEMENT VIOLATE THE AGREEMENT BY NOT STAYING THE ACTION
. . . .
AND, IF SO, DID THE EMPLOYEE HAVE A FULL AND FAIR TRIAL PRIOR TO HIS
SEPARATION?
IF NOT, WHAT IS THE REMEDY?
4 FLRA NO. 51 AT 1 (EMPHASIS ADDED). THE ARBITRATOR DETERMINED THAT
THE GRIEVANCE HAD BEEN RENDERED NONGRIEVABLE AND NONARBITRABLE AS A
MATTER OF LAW AFTER THE EFFECTIVE DATE OF THE STATUTE, BY SECTION
7121(C)(4). ACCORDINGLY, BASED ON THIS DETERMINATION, HE DISMISSED THE
GRIEVANCE IN ITS ENTIRETY WITHOUT DELIBERATIONS OR RULINGS ON THE
SUBSEQUENT ISSUES. PURSUANT TO SECTION 7122(A) OF THE STATUTE AND
SECTION 2425.4 OF ITS REGULATIONS, THE AUTHORITY SET ASIDE THE AWARD ON
THE SOLE GROUND THAT THE ARBITRATOR'S INTERPRETATION OF SECTION
7121(C)(4) WAS IN ERROR.
/41/ IN HOLDING THAT SECTION 7121(C)(4) DOES NOT MANDATE SUCH
EXCLUSIONS, THE AUTHORITY IN NATIONAL COUNCIL ALSO STATED THAT
"(S)ECTION 7121(A)(2) OF THE STATUTE PERMITS THE PARTIES IN THE FEDERAL
SECTOR TO NEGOTIATE EXCLUSIONS TO THE BROAD SCOPE GRIEVANCE PROCEDURE
PERMITTED BY THE STATUTE IF THEY CHOOSE TO DO SO, INCLUDING EXCLUSIONS
PERTAINING TO GRIEVANCES OVER THE SEPARATION OF PROBATIONERS." 4 FLRA
NO. 51, AT 7.
/42/ CIVIL SERVICE REFORM ACT OF 1978: CONFERENCE REPORT, H.R. REP.
NO. 95-1717, 95TH CONG., 2D SESS. 157 (1978), CITED IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS
ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48
(1980), AT 4, AND INTERPRETATION AND GUIDANCE, 2 FLRA 273, 277 (1979).
/43/ SEE S. REP. NO. 95-969, 95TH CONG., 2D SESS. 110-11 (1978) AND
H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 56 (1978).
/44/ THE AUTHORIZATION FOR A PROBATIONARY PERIOD IS CONTAINED IN 5
U.S.C. 3321. THE GOVERNMENT-WIDE REGULATIONS WHICH PROVIDE FOR THE
IMPLEMENTATION OF SUCH A PROBATIONARY PERIOD, 5 CFR PART 315, MANDATE,
IN PART, THAT ALL NEW APPOINTEES TO CAREER POSITIONS IN THE FEDERAL
SERVICE MUST COMPLETE A PROBATIONARY PERIOD OF ONE YEAR.
/45/ NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES DEPARTMENT
OF LABOR, 4 FLRA NO. 51 (1980), AT 5.
/46/ ID. AT 6.
/47/ SEE, E.G., 5 U.S.C. 1104, 3304(A), 3308-11, AND 3327.
/48/ IN THIS REGARD, SEE H.R. REP. NO. 901, 89TH CONG., 1ST SESS. 45
(1965); AND S. REP. NO. 1380, 89TH CONG., 2D SESS. 65 (1966), CITED IN
NATIONAL COUNCIL, SUPRA, AT 6.
/49/ NATIONAL COUNCIL, SUPRA, AT 7, CITING 5 U.S.C. 4303, 7501, AND
7511.
/50/ STATUTORY APPEALS COVER CERTAIN ENUMERATED APPEALS, E.G., AS
REGARDS ACTIONS TO REDUCE THE GRADE OF OR REMOVE CERTAIN EMPLOYEES FOR
UNACCEPTABLE PERFORMANCE (5 U.S.C. 4303(A), (E)) AND ACTIONS TO REMOVE,
SUSPEND FOR MORE THAN 14 DAYS, REDUCE THE PAY OF, OR FURLOUGH FOR 30
DAYS OR LESS CERTAIN EMPLOYEES TO PROMOTE THE EFFICIENCY OF THE FEDERAL
SERVICE (5 U.S.C. 7512, 7513(D)), WHEREAS NEGOTIATED PROCEDURES MAY
COVER ANY ACTION WHICH MIGHT LAWFULLY BE COVERED UNDER SUCH PROCEDURES
UNLESS THE PARTIES AGREE THROUGH COLLECTIVE BARGAINING TO NARROW THE
COVERAGE OF THE PROCEDURES. NOTE 42, SUPRA, AND ACCOMPANYING TEXT.
/51/ SEE, E.G., S. REP. NO. 95-969, 95TH CONG., 2D SESS. 4 (1978).
/52/ A MAJOR PURPOSE OF CONGRESS IN ENACTING THE STATUTE WAS TO
STRIKE SUCH A BALANCE. SEE, E.G., 124 CONG.REC.H 9633 (DAILY ED. SEPT.
13, 1978) (REMARKS OF REP. UDALL); 124 CONG.REC. H 9647 (DAILY ED.
SEPT. 13, 1978) (REMARKS OF REP. FORD); AND 124 CONG.REC. S 17083
(DAILY ED. OCT. 4, 1978) (REMARKS OF SENS. SASSER AND PERCY). SEE ALSO
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D
1140, 1144-45 (D.C. CIR. 1981), CERT. DENIED SUB NOM., AFGE, V. FLRA 50
U.S.L.W. 3669 (FEB. 23, 1982).
/53/ 124 CONG.REC.H 9634 (DAILY ED. SEPT. 13, 1978).
/54/ S. REP. NO. 95-969, 95TH CONG., 2D SESS. 4 (1978).
/55/ H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS. 138 (1978).
/56/ 5 U.S.C. 7119(C)(2).
/57/ 5 U.S.C. 7119(C)(5)(B)(III).
/58/ NOTE 24, SUPRA.
/59/ IN VIEW OF THIS CONCLUSION, IT IS UNNECESSARY TO REACH THE
ADDITIONAL CONTENTIONS OF THE AGENCY AS TO THE NEGOTIABILITY OF THE
PROPOSAL.
/60/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 5 FLRA
NO. 15 (1981) (PROPOSAL CONCERNING TEMPORARY DUTY ASSIGNMENTS HELD
NEGOTIABLE, WHERE THE RECORD INDICATED THAT THE ASSIGNMENTS DID NOT
INVOLVE A POSITION CHANGE BY AN EMPLOYEE AND MERELY REQUIRED THAT THE
EMPLOYEE TEMPORARILY PERFORM THE REGULAR DUTIES OF HIS OR HER POSITION).
/61/ NOTE 9, SUPRA.
/62/ NOTE 5, SUPRA.
/63/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/64/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA 152 (1979), ENFORCED AS TO OTHER MATTERS SUB NOM.,
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 140
(D.C. CIR. 1981), CERT. DENIED SUB NOM., AFGE V. FLRA, 50 U.S.L.W. 3669
(FEB. 23, 1981).
/65/ 2 FLRA 152, 160-61.
/66/ NOTE 5, SUPRA.
/67/ AGENCY STATEMENT OF POSITION AT 1.
/68/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 1332 AND
HEADQUARTERS, U.S. ARMY MATERIEL DEVELOPMENT AND READINESS COMMAND,
ALEXANDRIA, VIRGINIA, 3 FLRA NO. 97 (1980) AT 2.
/69/ 124 CONG.REC. H 9646 (DAILY ED. SEPT. 13, 1978)
/70/ H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS. 154 (1978).
/71/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERITS.
/72/ FPM CHAP. 300, SUBCHAPTER. 8-4E PROVIDES IN RELEVANT PART:
IF A DETAIL OF MORE THAN 120 DAYS IS MADE TO A HIGHER GRADE POSITION,
OR TO A POSITION WITH
KNOWN PROMOTION POTENTIAL, IT MUST BE MADE UNDER COMPETITIVE
PROMOTION PROCEDURES.
/73/ NOTE 16, SUPRA.
/74/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
695 AND DEPARTMENT OF THE TREASURY, U.S. MINT, DENVER, COLORADO, 3 FLRA
NO. 7 (1980) AT 3; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,
2 FLRA 603, 613 (1980), ENFORCED SUB NOM., DEPARTMENT OF DEFENSE V.
FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981), CERT.
DENIED SUB NOM., AFGE, V. FLRA, 50 U.S.L.W. 3669 (FEB. 23, 1982).
/75/ ID.